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