Legal Help for Veterans
What is Total Unemployability
For a veteran to prevail on a claim based on total unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable
of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 3 61, 363
(1993). It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b).
The VA defines un-employability as follows [40 FR 42536, Sept. 15, 1975, as amended at 43 FR 45349, Oct. 2, 1978]:
“A veteran may be considered as unemployable upon termination of employment which was provided on account of disability, or in which special consideration was given on account of the same, when it is satisfactorily shown that he or she is unable to secure further employment. … However, consideration is to be given to the circumstances of employment in individual claims, and, if the employment was only occasional, intermittent, try out or unsuccessful, or eventually terminated on account of the disability, present unemployability may be attributed to the static disability.”
TDIU Requirement Veteran Be Unable to Secure Substantially Gainful Occupation
The VA has defined substantially gainful occupation in its Adjudication Procedures Manual (Manual M21-1MR, Part VI, subpart ii, 2F.24.d) as that which is ordinarily
followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Marginal
employment is not considered substantially gainful employment. Marginal employment is defined as earned annual income that does not exceed the poverty threshold for
one person as established by the U.S. Department of Commerce, Bureau of the Census. Under the current poverty threshold established by the Bureau of the Census,
marginal income for the year 2010 is $11,334.00.
In Faust v. West, (13 Vet. App. 342, 356 (2000), the Court adopted a definition of a substantially gainful occupation. The Court concluded that a substantially
gainful occupation, is [an occupation] that provides [the veteran with an] annual income that exceeds the poverty threshold for one person, irrespective of the
number of hours or days that the veteran actually works.
In Roberson v. Principi, (251 F.3d 1378, 1385 (Fed. Cir. 2001), the Federal Circuit further defined that the term SGA is flexible. Although the term SGA may not set
a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent. Veteran, because of service-connected disability, is incapable of
performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. “[T]he BVA may not reject [a
veteran’s] claim without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be
other than marginal’.” Bowling v. Principi, 15 Vet.App. 1, 9 (2001) (emphasis in text) quoting Beaty v. Brown, 6 Vet.App. 532, 539 (1994) citing see also James v.
Brown, 7 Vet.App. 495, 497 (1995) (“Board ‘was not convinced that there were not some jobs he could do’ but no evidence supported that conclusion”).
The VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-
connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience.
Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so
severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least
60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability
ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).
In a pertinent precedent opinion, the VA General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their
individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability
shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a
subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC
75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2,317 (1992).
The Board further observes that being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term
‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v.
Principi, 251 F.3d 1378 (Fed Cir. 2001).
In discussing the unemployability criteria, the United States Court of Appeals for Veterans Claims, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated, in
essence, that the unemployability question, that is, the ability or inability to engage in substantial gainful activity, had to be looked at in a practical manner,
and that the thrust was whether a particular job was realistically within the capabilities, both physical and mental, of the veteran involved.
Consideration of Educational and Occupational History
In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a
conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.19. Once a Veteran is found to have 60% service
connected disability (or 40%/70%) in step one of the analysis, the VA analyzes the veteran’s educational and occupational history to determine whether his service-
connected disabilities preclude him from securing or following substantially gainful employment (activity) (SGA).
In Beaty v. Brown, 6 Vet. App. 532, 537 (1994), the Court held that to determine whether service connected disability precludes SGA, a general medical examination is
to be scheduled in which the examiner is requested to provide an opinion as to whether or not it is at least as likely as not that the veteran’s service-connected
disability or combined disabilities render him or her unable to secure and maintain SGA, to include describing the disabilities’ functional impairment and how that
impairment impacts on physical and sedentary employment. See also VA Training Letter 10-07 (Sept. 14, 2010).
The Court has stated: “[w]here the veteran submits a claim for a TDIU rating … the BVA may not reject that claim without producing evidence, as distinguished from
mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.” The simple fact that a veteran may be young, or
may be highly educated, or may have been recently employed, or may have had a long work career are not decisive, and standing alone are insufficient justifications
to deny a TDIU claim; Gleicher v. Derwinski, 2 Vet. App. 26 (1992).
What is the effective date for TDIU
The General Counsel provided a binding opinion in VAOPGCPREC 12-2001 regarding Roberson v. Principi, No. 00-7009, 2001 U.S. App. LEXIS 11008 (Fed. Cir. May 29,
2001), holding the following:
1. Once a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability,
the requirement in 38 C.F.R. 3.155(a) that an informal claim “identify the benefit sought” has been satisfied and the VA must consider whether the veteran is
entitled to total disability based upon individual unemployability (TDIU).
2. A veteran is not required to submit proof that he or she is 100% unemployable in order to establish an inability to maintain a substantially gainful
occupation, as required for a TDIU award pursuant to 38 C.F.R. 3.340(a).
“The VA erroneously demanded that the veteran first file for TDIU and assign the onset date to the date veteran filed for TDIU or filed VA Form 21-8940. This is an
error. When a veteran files an original claim for evaluation of a disability or a claim for an increase in the evaluation of a disability that has already been
rated by the VA, the claimant is generally presumed to be seeking the highest benefit allowable. (See AB v. Brown, 6 Vet. App. 35, 38 (1983); see also Roberson v.
Principi, 251 F.3d 1378, 1383 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009); Norris v. West, 12 Vet. App. 413, 421 (1999). If either claim includes
facts that indicate that the veteran is unemployable, the VA is obligated to consider and adjudicate a TDIU claim.”
In Servello v. Derwinski, 3 Vet. App. 196 (1992), the court held that the existence of an inferred claim for TDIU might have entitled the veteran to an earlier
effective date because under 38 U.S.C.S. 5110(b)(2), the effective date of an award of increased compensation shall be the earliest date as of which it is
ascertainable that an increase in disability occurred if the application is received within one year from such date. The court reasoned that because under 38 C.F.R.
3.155(a), the VA was required to, but did not, forward to the veteran a TDIU application form, the one-year filing period for such application did not begin to run.
Thus, as a matter of law, the inferred claim submitted prior to the date of a formal TDIU application must be accepted as the date of claim for effective date
In Collier v. Derwinski, 2 Vet. App. 247, 251 (1992), the Court held the VA was obliged to consider issue of entitlement to TDIU benefits despite the veteran’s not
having filed the specific TDIU application form because he has continually stated that he is unable to work due to his schizophrenia. Roberson, 251 F.3d at 1384;
Norris, 12 Vet. App. at 421
Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the rating agency and the Board has a duty to investigate Veteran’s entitlement to TDIU.
Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the rating agency and the Board has a duty to investigate Veteran’s entitlement to TDIU. In Rice v. Shinseki,
22 Vet. App. 447 (2009), the Court made it abundantly clear that the Veteran Administration has a duty to investigate the eligibility of a veteran for TDIU when the
veteran requests a higher rating which will entitle him to schedular unemployability and the records indicate evidence of unemployability. The Court stated:
“It is clear from our jurisprudence that an initial claim for benefits for a particular disability might also include an assertion of entitlement to TDIU based on
that disability (either overtly stated or implied by a fair reading of the claim or of the evidence of record)( emphasis added) ….The Federal Circuit’s recent
decision in Comer v. Peake contains language consistent with this analysis: “A claim to TDIU benefits is not a free-standing claim that must be pled with
specificity; it is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” 552
F.3d 1362, 1367 (Fed. Cir. 2009). This statement of the law is consistent with and reiterated the Federal Circuit’s earlier decision in Roberson v. Prinicpi,
involving the assignment of an initial disability rating, which reversed this Court’s holding that Mr. Roberson failed to make “a claim for TDIU” and held that
consideration of TDIU is required once “a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally
submits evidence of unemployability.” 251 F.3d 1378, 1384 (Fed. Cir. 2001); see also Bernklau v. Principi, 291 F.3d 795, 799 (Fed. Cir. 2002) (discussing a request
for TDIU in the context of a claim for increased compensation for an already service-connected disability). Further, this Court has already stated this principal
clearly: “A TDIU rating is not a basis for an award of service connection. Rather, it is merely an alternate way to obtain a total disability rating without being
rated 100% disabled under the Rating Schedule.” Norris v. West, 12 Vet.App. 413, 420-21 (1999).
Considering more closely the facts of Comer, Roberson, Bernklau, and Norris, we hold that a request for TDIU, whether expressly raised by a veteran or reasonably
raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either
as part of the initial adjudication of a claim or as part of a claim for increased compensation, where the disability upon which entitlement to TDIU is based has
already been found to be service connected.”
The VA may not deny unemployability based solely on the failure of the veteran to submit Form 21-8940.
The VA often defends its decision not to consider unemployability based on the failure of the veteran to submit Form 21-8940.
First of all, in doing so the Board violated its own policy as clearly expressed in the manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section F, which
states: “Note: Although a VA Form 21-8940 can be an important development tool, it is not required to render a decision in an IU claim.”
Secondly, the Court in Rice already stated that Form 21-8940 is only one of several ways Veteran can request TDIU:
“The Court holds that a request for TDIU is best understood as part of an initial claim for VA disability compensation based on the individual effect of the
veteran’s underlying disability or disabilities or as a particular type of claim for increased compensation. This is not to say that a claimant cannot submit a
request for TDIU at any time, whether on a VA Form 21-8940 or in any other manner (emphasis added). Submission of a request for TDIU does not change the essential
character of an assertion of entitlement to TDIU as a part of either an initial claim or a claim for increase.”
Thirdly, pursuant to 38 C.F.R. § 4.16(a), See also Beaty v. Brown, 6 Vet.App. 532, 537 (1994):
“The Board “may not reject [an application for TDIU] without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would
produce sufficient income to be other than marginal.”
The manual further instructs the rating agency to be more vigilant where the veteran, (2-F-9):
“Development to produce the evidence necessary to establish the degree to which SC disability has impaired the Veteran’s ability to engage in self-employment must
generally be more extensive than development in cases in which the Veteran worked for others.
When determining entitlement of self-employed individuals to increased compensation based on IU, consider the relationship between the frequency and the type of
service performed by the Veteran for his/her business and the Veteran’s net and gross earnings for the past 12 months.
Consider facts of the case, such as
• low gross earnings that support a finding of marginal employment, especially when the amount of time lost from work due to SC disablement is taken into
• high gross earnings that indicate the Veteran is capable of engaging in a substantially gainful occupation.
If the information on VA Form 21-4192 only states that the Veteran retired, then request additional information as to whether the Veteran’s retirement was by reason
of disability. If so, ask the employer to identify the nature of the disability for which the Veteran was retired.”
While we believe that VA Form 20-8940 is not mandatory, and clearly should not be the basis for denial of Veteran’s right to benefits, we urge you to enclose the
form with your appeal
I am an attorney specializing in disability and veterans’ disability law and also a board certified surgeon (transplant surgery) still licensed to practice medicine. I am also most proud of being a combat veteran. In 1973 I was a young Captain serving in the Israeli Seventh Brigade (armored). My brigade, with only 80 tanks, held the Golan Heights against an assault by more than 600 Syrian tanks and artillery pieces, and led the counter attack that won the Yom Kippur War. I am passionate about defending veterans’ rights and firmly believe that my medical career gives me a great advantage in understanding and challenging faulty medical rating decisions. As an attorney admitted to practice before the U.S. Court of Appeals for Veterans Claims, I am committed to understanding the very complex legal rules and decisions involved.
Do I really need an attorney to represent me before the Veterans Administration (VA)?
For many decades prior to 2007, the VA policy was to discourage attorneys from representing veteran claimants by making it a federal crime for an attorney to charge more than $10 for representation. Reforms in the way the VA handles claims have improved the general application process, but many claimants are still extremely dissatisfied and confused by the regulations and the case law. Recent statistics show that only 17% to 28% of cases are approved at the Board of Veterans’ Appeals (BVA). Fortunately the US Court of Appeals for Veterans’ Claims (CAVC) reverses the majority of the adverse BVA decisions.
Between 1995-2006, the CAVC heard 18,000 cases in which the claimants had been denied benefits at the BVA level. In almost 80% of the cases, the CAVC either reversed the BVA decision or remanded it for re-adjudication, finding at least 1 legal error in the BVA decisions. It is thus essential that the veteran consider from the outset whether his claim can be heard by the CAVC. Only members of the CAVC bar can represent Claimants. The CAVC will not accept new information not previously provided to the Regional Office (RO) or to the BVA, so hiring an attorney early can ensure that all relevant evidence is properly presented and that all legal arguments are raised before an appeal is submitted.
Volunteer Layperson advocates have diligently and compassionately represented veterans for decades. The lack of legal education and large caseload significantly limit their otherwise commendable and dedicated service.
In June 2007, Congress, in response to demands from veterans who were frustrated with the prospect of navigating the complex bureaucracy without an attorney, approved attorney involvement in representing claimants before the VA, The law now allows attorneys to represent claimants before the VA and to charge a reasonable fee. The law defines a reasonable fee to be 20% of the past-due benefits which the VA pays directly to the attorney.
Who is eligible for benefits?
Benefits are given to veterans and to their dependents or survivors. A veteran is someone who was discharged under conditions other than dishonorable. For members of the National Guard and Reserves, disabilities are considered service-connected if the injuries occurred or were aggravated in the line of duty. Members of the National Guard are eligible only if they were called to service by the President, not by a state governor. Only veterans with war-time service are eligible for non-service connected disability pension benefits. This does not require the veteran to have served in a combat zone, only that he/she was in service during the designated periods. If the veteran served at least 90 consecutive days, and if only one of those days fell in a period designated as war time, then all of his/her service is considered war-time. There are no benefits if the injury was due to willful misconduct.
War-time dates include: Korean Conflict: from June 1950 to January 1955; Vietnam (Southeast Asian) Conflict from August 5, 1964 (but from February 28, 1961, for those who actually served in Southeast Asia) to May 7, 1975; and the Persian Gulf Conflict: from August 2, 1990 to February 28, 1991.
What is the difference between compensation and pension?
Compensation is for a veteran who was injured or who contracted a disease during service. Pension is for a veteran whose medical condition is not solely the result of an injury or disease contracted during the military service, but who served during a time that is defined as war time. Pension is income-dependent and is reduced by other income. Compensation is paid in full regardless of other income. Survivors of veterans who died on active duty, as well as survivors of veterans who died as a result of service-connected disability, are eligible for Dependency and Indemnity Compensation.
How do I file for veterans’ disability?
A claim for veterans’ benefits originates at the agency of original jurisdiction, or Regional Office (RO). If the RO denies the benefit, the claimant files a Notice of Disagreement (NOD) at the RO. After the NOD is filed, the RO may ask the claimant whether or not he desires a de novo review (i.e., a complete review at the RO without giving weight to the previous denial). If the claimant does not request a review by a Decision Review Officer (DRO) , then the RO must mail the Statement of Case (SOC), which must explain the reason for the denial. If the claimant is dissatisfied with the decision of the RO, he/she can appeal the decision to the Board of Veterans’ Appeals (BVA), which makes the final agency decision.
How do I appeal the RO decision?
After the RO mails the SOC to the claimant, the claimant submits the appeal by filing VA Form 9, either 60 days from the date of receipt of the SOC or during the remainder of the 1-year period from the date of the RO notice of its initial decision, whichever is later.
Is the process of filing for veteran’s disability similar to Social Security Administration (SSA) disability?
No. First, the SSA focuses on a claimant’s ability to do any work in the national economy, even if he/she cannot perform his/her previous job. The VA may establish service-connected disability even if the veteran can still work. Second, the SSA follows the doctrine of res judicata, under which a decision by the SSA at any level is considered final if it is was not appealed within 60 days. Res judicata cannot generally be challenged. VA disability permits re-opening of the claim many times, and res judicata operates only when a claim has been appealed to the US Courts of Appeals for Veterans’ Claims (CAVC).
What is the VA disability rating system?
Unlike the SSA which grants benefits for persons who are unable to work in any job in the national economy, the VA grants benefits for the potential of an impairment to decrease one’s ability to earn a living. The rating system provides degrees of impairment from 0-100% in increments of 10. The lowest compensable rating is 10% which pays a claimant $115/month (as of December of 2006). A 100% rating provides for monthly benefits of $2,471.
A detailed rating grid is broken down by sections pertaining to various organs or classes of diseases. Each body system contains a series of diagnoses, each with a numerical diagnostic code. Each diagnosis is then broken down in ratings from 0-100%. The degree of disability increases as the severity of symptomatology becomes greater. For example, a rating of 30% for ulcerative colitis connotes moderately severe colitis with frequent exacerbations, whereas a rating of 100% for ulcerative colitis requires a show of pronounced colitis with marked malnutrition, anemia, and general debility. Obtaining a rating of even 0% for a condition is important, in that it sets the ground for increasing the rating if the condition gets worse, without the need to prove service connection. Where there are two or more service-connected disabilities, the overall percentage is computed by “combining” the individual ratings, not by adding them together. For example, a 30% service-connected rating for one condition, plus a 20% service-connected rating for another condition, will result in a 40% combined rating, not 50%.Analogous ratings are for disabilities that are not listed in a rating schedule, but that could be rated under a closely related disease or injury
READ MORE The Veteran rating system
Total Disability Ratings Based on Individual Unemployability
Individual unemployability,” or IU, is a way for the Department of Veterans Affairs (VA) to compensate veterans who are unable to work because of their service-connected disability at the one hundred percent rate, even though their veterans’ disability rating, according to VA’s Schedule for Rating Disabilities (Rating Schedule), does not actually reach one hundred percent. A veteran receiving IU receives the disability compensation equivalent to a 100% rating. According to the Code of Federal Regulations (C.F.R.): “Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.” 38 CFR § 4.16a
To establish IU, the veteran must submit to a comprehensive evaluation that takes both occupational and medical factors into account. The IU evaluation considers the individual veteran’s capacity to engage in a substantially gainful occupation, defined as the ability to earn more than the federal poverty level (about $10,000 a year). This is in contrast to the regular schedular evaluation, which considers how the veteran’s disability impairs potential earnings. Age is expressly prohibited as a consideration when evaluating a veteran for IU, so veterans beyond the normal age of retirement may secure benefits under the provisions of IU without worrying that age will be considered non-service connected contributing factor. The effects of non-service connected disabilities also are prohibited as a consideration.
IU is a fast-growing part of the VA’s expanding disability compensation program. The total number of veterans receiving any form of disability compensation increased by about 16 percent from 2000 to 2006, while the number of IU recipients more than doubled during the same time period. At the end of FY 2006, 8.5 percent of veterans receiving compensation were rated IU, compared with only 4.9 percent at the end of FY 2000 [i]. Current Veterans Benefits Administration (VBA) statistics show that 35 percent of IU beneficiaries have mental health conditions as their major diagnosis, with more than two-thirds having a diagnosis of post-traumatic stress disorder [PTSD]. Mental health conditions are followed by musculoskeletal conditions (29 percent) and cardiovascular conditions (13 percent) as the major diagnosis (READ MORE)
Winning your claim for PTSD Disability Benefits
There are three main reasons which used to cause claims for PTSD to be denied:
1) The rating officer provides a lower rating than is justified by the clinical presentation.
2) The VA concludes that the stressor the veteran experienced was not “an event that is outside the range of usual human experience and would have been markedly distressing to almost anyone.”
3) There is no evidence that the veteran was actually in combat.
These conclusions by the VA are no longer acceptable reasons for denial of benefitsRecent VA rulings, Court rulings, and the replacement of the DSM-III-R with the DSM-IV as the basis for determination of disability, have dramatically changed the way the VA rates, or should rate, veterans applying for disability benefits. The Department of Veterans’ Affairs has recently published a new manual, “Best Practice Manual for Posttraumatic Stress Disorder (PTSD) Compensation and Pension Examinations.” With the publication of this manual, the VA has declared: “The Veterans’ Benefits Administration (VBA) and Veterans’ Health Administration (VHA) are committed to improving these services to veterans, and improving the quality of compensation and pension examinations for PTSD.” The manual changes many of the assumptions that led to denial of PTSD claims in the past. Review of this manual is thus critical to claimants and their attorneys
What is the Effect of a Favorable Social Security Disability Decision on veteran disability?
The SSA found that you are unable to secure any job in the national economy. Is that decision binding on the VA? It is clear that a favorable rating decision by the VA is entitled to evidentiary weight in a Social Security hearing
In Thomas E. McCartey v. Massanari, 298 F.3d 1072 9th Circ 2002, the Court agreed that a VA disability rating is entitled to evidentiary weight in a Social Security hearing. See Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir.2001) (per curiam) (VA disability rating is generally entitled to “great weight” and “must be considered by the ALJ”
Understanding the new rating for back and neck spinal disability
Degenerative joint disease of the spine is one of the most common claims made by Veterans for service-connected disability.That is because back injury is so common during military service.Contrast this with other conditions, such as cardiac conditions, which rarely affect young soldiers.
This severe condition causes many Veterans to be unable to work.
How can we help?
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