VA Unemployability

VA UNEMPLOYABILITY CLAIMS

When a veteran can't work due to service-connected disabilities, they could be eligible for disability compensation at the 100% level, even if their disabilities don't add up to 100. This benefit is called Total Disability Individual Unemployability. In the business, we call it TDIU.
           
The VA specifies that a veteran is eligible for TDIU if: "Any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation is present. Total disability may or may not be permanent. Generally, total ratings will not be assigned for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule.

TDIU is for All Veterans Not Working Due to Service-Connected Disabilities

Veterans have to prove that service-connected conditions keep them from working. Although the VA will tell you there are more nuanced considerations, like whether you have a 60% overall rating or a single disability rated at 40%, the reality is, if you can prove that your service-connected disabilities are the reason you can't work, no matter what the rating is, then you should have a successful TDIU claim. This is called an "extraschedular basis."

Put another way, when you don't meet the rating requirements but have submitted the proper evidence showing unemployment and a link to your service-connected conditions, the VA can consider your claim on an "extraschedular basis."  The standard for proving your conditions keep you from working is difficult to meet. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether they can find employment.

HOW VA EVALUATES TDIU CLAIMS

Essentially, there are two hurdles you must clear before your claim is granted. Both hurdles have specific legal definitions, so this will only be a brief overview.

The first hurdle you must prove is that you are not engaged in "substantial gainful employment." You are not working, or you make so little you do not meet the poverty threshold. For the most part, this is an objective consideration. We can use tax documents or pay stubs to prove this. Sometimes, this standard can get nuanced, in which case an attorney is imperative.

The second hurdle to prove is that your service-connected conditions keep you from working. The first question the VA will ask for an extraschedular claim is whether the schedular rating criteria adequately contemplate the veteran's disability picture. For example, are all veterans' symptoms considered in their rating? If not, then the second inquiry is whether there is apparent interference with employment or frequent periods of hospitalization. When a veteran's symptoms aren't adequately considered under the rating schedule. They impact a veteran's ability to work, and the third step is to refer the case to the Director of Compensation Services (Director) to determine whether an extraschedular rating is warranted. 

The second hurdle tends to be more difficult to prove because it's subjective. In most cases, a veteran will present evidence of their symptomatology and medical treatment records to show the severity of their conditions. Then, they will use statements from previous employers, termination paperwork, or even disability accommodation paperwork to show how the conditions impact their work.

For example, for a PTSD claim, if their condition isn't "total social and occupational impairment" at their previous C&P exam, they will not be given a 100% rating. However, if a Veteran can prove that their symptoms do create total social and occupational impairment, then they could meet the extraschedular criteria. Symptoms of PTSD that would meet extraschedular criteria include:

• Prefer to isolate, limit his social interactions, and avoid crowds. 
• Hypervigilance and an exaggerated startle response. 
• Panic attacks, especially if they require accommodations for symptoms to subside.
• Unprovoked anger, irritability, and/or hallucinations.
• Severe depressive symptoms.
• Overall lack of motivation. 
• Difficulty completing simple daily tasks such as basic household chores. 
• Chronic sleep impairment.
• Need for psychotropic medications that might have adverse side effects to include an increased difficulty with concentrating.

Evidence from Social Security Disability May Help

Another way to meet the extraschedular criteria is to have a successful social security disability (SSDI) claim based on the same impairments as your service-connected conditions. Any vocational reports or disability determinations by the SSA are great probative evidence for a VA TDIU claim.

Our Lawyers Have Been Getting TDIU Granted at VA Since 2009

Don't get tripped up by all the hurdles in a TDIU claim. Let us help you determine the most relevant evidence for your case and give you the extra push your claim might need to get granted. Contact us today!