How to WIN Your VA Unemployability Claim


Maura Clancy: Good afternoon everyone, welcome
to Chisholm Chisholm and Kilpatrick’s Facebook live discussion for today. My name is Maura Clancy, I am here with Barbara
Cook and Mike Lostritto and today we are talking about TDIU which stands for a total disability
rating based on individual unemployability. So that’s a lot of words, it’s a lot of big words
we are here today to focus on breaking down what TDIU is, what the parameters and requirements
for TDIU are and types of evidence that are relevant to TDIU claims among other things
but before we get started just a reminder if you have at any point any questions about
the discussion that we are having today please feel free to leave questions in the comments
feed next to this video. We will try to address them either during
our discussion today or by posting a response. We have some helpful blog links and prior
videos that we might think would be helpful to you. So be sure to look at the comment section
for additional materials. Without further ado, Mike, why don’t you get
us started today please if you wouldn’t mind and could you please tell us what TDIU is
generally? Mike Lostritto: Sure, so thanks Maura. As you said TDIU stands for a total disability
rating based on individual unemployability. This is a form of VA compensation benefit
which pays at the 100% rate and essentially it boils down to whether the veteran’s service-connected
disabilities prevent him or her from obtaining and maintaining what is called substantially
gainful employment. Maura: So something that you mentioned before
was that this is an alternative to a 100% schedular rating, so is it correct to say
that a person who is deemed entitled to TDIU benefits is paid at the same rate as the 100%
schedular rate? Mike: It is and that’s important to note because
it is the way VA calculates the combined rating it’s very difficult actually to achieve
100% schedular rating based solely on combining the different disabilities that the veteran
may be service-connected for, so as you said this is an alternative path to still being
paid at the 100% maximum rate and it’s important to note that with TDIU as we said the veteran needs to be able to show that his or her service-connected disabilities were the cause or prevented
the veteran from securing or following substantially gainful employment with a 100% combined rating
that’s not necessarily the case and so those are important distinctions to keep in mind
when considering both paths. Maura: Great. And Barbara, Mike had just mentioned that
proving entitlement to TDIU stands on showing that you are unable to secure, follow the
phrase substantially gainful employment, I think it is what he used. Can you tell us more about what that phrase
means and what veterans need to do to show that they should be successful in a TDIU case? Barbara Cook: Sure, the VA has to look at
a whole range of characteristics and traits that the veteran has. They will look at his education, they will
look at his vocational background they call it meaning his work experience. They will not look at his age but then they
want to look at very specifically the limitations caused by the veteran’s service-connected
disability or disabilities, just those. Non service-connected disabilities are not
considered other things such as the reason the veteran retired may or may not be probably
not relevant. It’s really just looking at the limitations
and typically this comes from both the veterans own description or people who know, the descriptions
of people who know him or her and the C&P the compensation and pension examinations
in which the VA medical professional will describe what those limitations are. For example, is the claimant able to sit for
very long periods of time, stand, does the person have problems concentrating, things
of that nature. All those concepts that are relevant to whether
the person can actually work successfully at a substantially gainful employment position. Maura: I think– thank you for mentioning
earlier too that the focus for pretty much the entirety of the discussion is on service-connected
conditions. So when we say TDIU benefits these are — the determination of a TDIU is based on your service-connected disabilities, without consideration for non-service-connected things. And you mentioned that there are multiple
components that factor into whether a veteran can work, some components are physical in
nature, some are non-exertional or mental you might say that deal with concentration
impairment, memory impairment things like that but one type of work that we see a lot
in cases is the concept of sedentary work, can you tell us about what sedentary work
is and how that factors in here? Barbara: Sure, sedentary work is a term that
is used by the department of labor as well as social security administration and it’s
now starting to be used by the department of veteran’s affairs and it describes the
physical, exertional as you call it level of work. In other words, work is can be under the department
of labor and social security rules is divided into what they call exertional levels so it
ranges from sedentary which is the easiest type of physical work up to heavy work. So, for example, a construction worker is
doing heavy exertional work whereas a carpenter or truck driver might be doing medium physical
exertional work. A receptionist who is sitting for most of
the time is doing what the social security and the department of labor would consider
sedentary work. They have a very specific definition for it. Under a recent case called Ray v. Wilkie,
VA is required to consider and there is a specific definition for sedentary work is
that it means that the person must be able to sit for up to 2/3 of the 8 hour working
day but also may be required to stand or walk for the remaining 1/3 of the day. They also must be able to lift and carry up
to 10 pounds for as much as a third of that day. So it’s not just a job or the person is just
sitting nonstop because what the department of labor and social security have determined
is that there are no such jobs as that it really is all jobs require some physical exertion
and even sedentary work which is I said is the lowest exertional level of work requires
that there will be some sitting, excuse me, some standing and some walking. It’s important to understand that this is
just the exertional level. This is just the physical characteristic of
the work that as you mentioned there are non-exertional or mental components to work as well such
as the ability to concentrate, the ability to be productive. The ability to just show up to be reliable
if a person is not able to come to work on a reliable basis because of the service-connected
disability or disabilities than even if they can do very heavy work they may not be, they
may be eligible for unemployability benefits because the inability to just show up and
be productive is precluded by virtue of the service-connected disability. Maura: So as Barbara is explaining and I think
it is pretty easy to see that there is a lot going on when you talk about whether someone
can work. A common error that we see I think in VA decisions is that they think that if
a veteran can physically perform sedentary work then that’s good enough they are not
entitled to TDIU benefits but as Barbara has explained, sedentary work also has exertional
requirements, physical requirements that you have to meet. It’s not simply in a seated position all day
without any other strenuous activities to perform. Then there is also the other thing such as
the non-exertional limitations and then all of these limitations are the types of things
that you want to be documented in your file. They are going to be helpful if you are seeking
unemployability benefits. We will get into evidence later on, we will
get into more specifics about what kind of evidence is important. Thank you for explaining that. These are not easy concepts and ones that
VA commonly gets from. We have a question before we take the question,
I just also wanted to mention that in addition to the comments feed next to this video we
have materials posted on our website which is at cck-law.com. So please feel free to utilize any of the
videos and Blog posts that are on that website. We have done TDIU videos and blogs in the
past. So those of you there for your reference. So, our question today is from Alexa, thanks
Alexa for your question. Alexa wants to know how does TDIU apply to
SMC, which is special monthly compensation. Is there are standard way to get there or
is it better to get a full 100% rating and then try to go for special monthly compensation? Mike: Well this is definitely a complicated
issue but I think at the outset it should be said that TDIU and SMC are separate benefits,
right. So just because a veteran may not have TDIU
doesn’t necessarily preclude them from obtaining some form of SMC and there are various forms
of SMC and so likewise just because the veteran has TDIU doesn’t necessarily entitle them
to SMC. So the two don’t necessarily go hand in hand. One example, I can see in our practice here
quite often is aid and attendance. So this is an SMC benefit that can be granted
when it’s shown that the veteran is in need of regular aid and attendance from another
to perform, the functions of daily living if you will. So these things may go in hand in hand with
the veterans ability to or inability to work, not necessarily. So they are really I would say that they are
somewhat separate concepts and benefits that surely are inter related but you know one
doesn’t necessarily lead to the next. Barbara: On the other end they can interact
in a very positive and helpful way a very obvious example is the person who is getting
SMC based on house bound benefits for example, if the person is truly house bound it’s not
likely that they are able to engage in substantially gainful employment. Similarly, if a person suffers loss of use
of a hand both hands, one or both legs that obviously impacts and likely precludes the
ability to do substantially gainful employment. Maura: I agree and thank you both for explaining
that. SMC is a difficult area. There are a lot of different requirements,
SMC benefits can be, they sort of sometimes act as a ladder where you can move from one
lower level to a higher level. There is a math that comes into play but I
think in terms of strategy, in terms of thinking about what benefit you want to pursue, you
really don’t need to choose one over the other, you don’t need to focus on one before you
are able to focus on the other. As Barbara said, lot of the evidence will
be overlapping. So if you think that you are trying to seek
both types of benefits, it might be worthwhile to work on submitting evidence that shows
the limitations that all types of benefits require and then some of that evidence might
be duplicative or relevant to both things and so it will already be of the record. Great, anything anyone else want to add before
we move on? Mike: No, I think that covers. Maura: Perfect, Mike tell us now about the
VA form 21-8940. So this is the form that VA often requires
to be submitted in connection with request for TDIU. So tell us about the form what it requires
and how important it is. Mike: Sure, it is very important and it’s
a mechanism that VA uses to collect additional information from the veteran, a veteran seeking
TDIU benefits. So it includes a section for the veteran to
fill out, their work history for example, their educational attainment. It includes sections where the veteran is
to provide the date they feel they became too disabled to continue working. The day they last worked. It’s a form that VA does require in order
to at least at the regional office level that adjudicates TDIU in the first instance many
times. The form itself though it is technically called
an application for increased compensation based on unemployability, it’s not actually
a claim in the same sense that you would file a claim for an increased rating per say. TDIU in and of itself is not a claim for, TDIU is
not in and of itself a separate claim. It’s part of an underlying claim or appeal
for an increased rating. So the 8940 is very important because it does
provide that function of providing VA with additional information again regarding prior
work history and level of educational attainment but it’s not necessarily strictly speaking
a claim in itself. Maura: That makes sense. So there was another recent case that was
decided this year or late last year, Harper vs. Wilkie that talks about how TDIU attaches
to pending increase rate in claims. There’s other law that says that but that’s
one recent case where they emphasized that if you are seeking a higher rating for certain
disability TDIU is sort of part of that increased rating claim whenever it is raised by the
record or explicitly raised by the claimant. So the 8940 is one way to explicitly raise
the issue and as Mike said it is important to return the form if VA asks for it. It’s kind of– it has a weird status where
a lot of important is attached to it. Sometimes we see VA denying claims solely
because the veteran doesn’t fill up the 8940. So it’s really important to get that in the
record. In addition to explicitly raising TDIU with
the 8940 are there other ways to raise the issue such that VA is required to consider
entitlement to TDIU? Mike: Yeah, absolutely. If a veteran has an ongoing claim and there
is evidence in the veteran’s file that implicates the veteran’s service-connected disabilities
have in some way contributed to or caused or prevented the veteran’s ability to maintain
or obtain substantially gainful employment. The issue of TDIU can be what’s called raised
by the record or the evidence in record. It’s not explicitly stated neither the veteran
hasn’t submitted the 8940 but the evidence shows that either the regional officer of
the Board should address the issue. The court has held that whenever a veteran
is seeking an increased rating or appeals a decision for an increased rating, they are
implicitly seeking the highest or maximum benefit under the law and that includes TDIU. So really VA has an obligation to consider
TDIU any time it’s deciding a claim for an increased rating whenever there is evidence
in the record that indicates that’s the case. One important point about the 8940 that I
like to mention, despite the fact that the 8940 is not in itself a technically speaking
a claim for TDIU, VA often times treats it as such. For effective date purposes unfortunately
VA often times will get this wrong and assign if they do grant TDIU they will assign an
effective date for TDIU based on the date that the veteran submitted the 8940 form. There are numerous cases that you can look
to and you should look to to help get around that error but unfortunately at least what
I have seen in my practice is that the reality is many times the regional offices will treat
the 8940 as a claim and assign an effective date from that date. Barbara: So let me just follow up on your
comments about the reasonably raised concept of TDIU or unemployability, if the person
has not submitted the actual form because some ways that that can be what VA calls reasonably
raised by the record is for example, the veteran submits evidence from social security, the
social security determination finding that the person is disabled at least in part as
a result of a service-connected condition. Another example would be if he has applied
for occasional rehabilitation benefits through VA and they have said that they don’t believe
that he can work. Another example is if the veteran himself
just on his claim form says I can’t work or if a doctor or medical professional notes
he recently retired or was forced to retire due to service-connected disabilities. So there is multiple ways that that can be
raised by the record even though the veteran has not submitted the actual form. Maura: Right, and in addition to TDIU being
such a great benefit on its own one of the good things about it is that it can attach
in this way to increased rating claims and it can be reasonably raised by the evidence. So if you don’t get around to filling out the
8940 until a certain date and time it doesn’t necessarily mean that that has to be the effective
date at all for TDIU. You have to take a closer look at the claim
stream and the procedural history of the claims that are on appeal and the evidence that was
submitted with that claim stream. Barbara: It’s a critical benefit because I
think it is about twice what the 90% rating is at this point. Mike: Yeah, I think it’s about 1200 dollars
more. So it’s significant. Barbara: Per month, right? Mike: Yeah, per month. I am sorry yes per month. So it’s a significant increase from a 90%
combined rating. As I said earlier the way VA Math works
is that it is very difficult for a veteran who has a 90% combined rating to then achieve
a 100% combined rating solely by filing a claim or appealing an increased rating of
an individual service-connected disability. So TDIU really is I think it is a short cut
in a sense to getting paid maximum benefit under the law outside of certain additional
SMC benefits but what’s typically considered the maximum benefit under the law, it’s a
great way to get there if the evidence is in your favor and you can show that solely,
your service-connected disability solely caused or contributed to your inability to obtain
or maintain substantially gainful employment. Barbara: I liked that you called it a short
cut. I think of it also as a way of making up for
the fact that VA does have this funny math. Mike: Yeah. Barbara: When they do their combined ratings
they don’t just add the disabilities together if you are a 40% and a 60% that’s not a 100%
based on VA’s what I do call their funny math. Maura: And it’s frustrating math too because
sometimes you’re at a 90% rating combined and you’re still seeing grants. A 10% grant for this condition an increased
rating for that condition and it’s so so very hard to get to the 100% number and it can
be really discouraging to watch all of the 10s pile up between 90 and 100. We see this sometimes and sometimes people
just don’t understand why that isn’t adding up to any additional monthly benefits but
it’s just the way that the math system works. I think we have a separate video on combined
ratings and VA math that’s probably want to watch if you think that this might apply to
your situation if you are confused about how your combined rating and your monthly payment
is coming out. Yeah, I agree this is why TDIU can be so crucial
because even if you only have 60% combined or 70% combined something like that hypothetically
speaking this is a way to get paid at a higher rate. Dove tailing with that you are talking about
evidence before we’ve kind of been talking about evidence throughout. Let’s talk about some specific examples, what
kind of evidence should claimants submit if they are working on a TDIU claim generally
speaking. What kind of evidence does VA respond to? Mike: So there are number of pieces of evidence. We see lay statements are quite effective
in detailing how based on the veteran’s personal knowledge of their service-connected disabilities. Each one of those disabilities impacts their
ability to work. In addition, laying out the veteran’s work
history in a lay statement can really be helpful. If the veteran hasn’t worked from a certain
date we can obtain social security records which offer evidence to show that yes, in
fact the veteran actually has not been working since that date. So social security records are important,
earning statements rather, lay statements are always helpful. But I think more than any other piece of evidence
a vocational expert if you can get one is probably the best piece of evidence that you
can have when you are filing or appealing the TDIU issue. Barbara: Sometimes that can come from social
security, a favorable social security decision. Sometimes you can hire someone to do that
but it also can come from these references that I was talking about before, the social
security rule, the department of labor rule defining what some of these exertional limits
are these physical limitations. Inability to, if you have evidence for example,
that you truly are not able to stand or walk for more than 2 hours a day then under social
security, due to your service-connected disability. So social security’s definition would say
that then you are not able to work and so even just submitting that which is another
form of vocational evidence can be helpful in terms of showing that you are not able
to perform substantially gainful employment. Maura: So in addition to the lay statements,
Mike, thank you for explaining that. Lay statements can be very critical if they
come from persons that are competent to speak to the veteran’s limitations including the
veteran him or herself that can be very persuasive evidence. But a lot of times veterans will have C&P
exams and they will be sent for a lot of C&P exams over the years and all types of doctors
will talk about their various conditions and will hopefully have good evidence and those
reports about what functional impairments result from service-connected disabilities
but Barb why is a vocational, why is vocational evidence so important in TDIU case as opposed
to medical evidence? Barbara: Well the medical expert, the medical professional whether it’s a physician, psychologist, nurse practitioner, those people can help define
what the actual limitations the person has that’s a person who can contribute information
about this person can only lift 5 pounds. This person is not able to stay in for more
than an hour. This person needs to shift between sitting
and standing. Those are the actual limitations that the
claimant the veteran has but the issue of how that then translates into the ability
to work is a vocational question. In other words, it requires knowledge about
what does work require. What skills are needed and what physical and
mental capacities are needed for that. So a medical professional typically doesn’t
have training or experience in that any more than they have typically have training or
experience in Law or Plumbing or any other profession. They are medical experts they understand how
the body works and that’s their area of expertise. They don’t understand typically how work works
and so that’s why a vocational expert becomes or vocational evidence becomes critical in
order to translate those limits into whether the person is therefore able or unable to
perform substantially gainful employment. Maura: Great. Anything either of you want to add to the
evidence discussion? Mike: No, I think that’s a great point and
you know just going back to lay statements for a moment a veteran can’t for that very
reason state that he or she isn’t able to work because of this service-connected disabilities
they are not competent to make that determination but they can very clearly lay out I’m able
to stand for X amount of time, I’m able to walk a certain amount of distance. Those factual findings if you will then can
be used in the case by some of that is competent to opine on vocational issues to connect the
dots and show why the veteran may not be able to work due to their service-connected disabilities. Barbara: Similarly the veteran can say I was
fired or let go or not hired because they told me I couldn’t do the requirements of
the job. They know that that happened to them. But as Mike said they can’t make that next
leap. Maura: So I was just going to say I think
in a nutshell any evidence that is competent and has bearing on limitations caused by service-connected disabilities and in addition vocational evidence. Those are really the critical pieces I think
for these types of claims. Barbara: Definitely. Maura: We have another question, this one
is from Javier. Javier, thank you for your question. The question is so you don’t need to be 100%
to get TDIU and that is correct. This is what we’ve had touched on earlier. You don’t need to have a 100% schedular rating
meaning that all of your service-connected disability ratings don’t need to combine to a
100 in order to receive TDIU. TDIU will pay you at the 100% rate and in
that way a 100% rating and TDIU are similar but it has a different set of parameters. So for a 100% schedular rating, combined schedular
rating, that is the collection of all of your different disability ratings that come out
to a 100. For TDIU the question is whether your service-connected
conditions in combination render you unable to work. So, VA is looking at two different things
and there is two different ways two different paths to get to the 100% rating but you don’t
have to have a certain rating at all to get TDIU. In fact, something that we see common and
we had saved this for later but we might as well talk about it now is that sometimes VA
will say that your schedular ratings are not high enough to justify an award of TDIU. VA has a certain schedular rating threshold
for TDIU cases it’s a little bit complicated. I know we have a blog about this. I think it’s called an Extraschedular TDIU
blog post but basically there’s a threshold rating where VA will say that they can consider
TDIU without sending your case through an extra administrative hoop. If you’re at a lower rating level you have
to go through the extra administrative hoop. I’m simplifying and you know, generalizing. So, correct me if I see anything wrong but
you don’t have to have any particular type of rating. You just have to have service-connected conditions
that affect the ability to work. So, if you ever see a decision that says,
“Your rating isn’t high enough.” That’s not something that they can do on their
own to deny TDIU. Mike: Yeah. That’s 100% accurate. Really the fundamental question is do your
service-connected disabilities and your service-connected disabilities alone preclude you from obtaining
and maintaining substantially gainful employment regardless of your combined disability rating. That’s the fundamental inquiry. Maura: Perfect. Barb, what about veterans that are employed? Is there any way that a veteran who is employed
can receive TDIU benefits? If so, under what circumstances might that
happen? Barbara: The short answer is yes. There is and as Mike just said the focus is
always on whether the service-connected disabilities prevent the person from working and so, if
a person is earning less than the poverty level which right now is about $12,000 a year
the poverty level for one, if the person is working and earning less than that, and the
reason they’re only able to earn that much money is because of their service-connected
disability then they can be considered eligible for TDIU under what VA calls marginal employment. The other way that people who are working
can obtain TDIU even if their income is above that poverty level is if they are in what
VA calls a protected work environment. A protected work environment has yet to be
defined by VA. They are struggling to say the least and every
Board decision we see has a different definition of it but in CCK we think that it means at
least that the person is receiving unreasonable accommodations. In other words the employer is making changes
to the essential functions of the person’s job not demanding that the person be as productive
as other people allowing the person more time off than typically is permitted and yet paying
the person the same amount as if they were as productive, as if they were showing up
as often as other people. It really does relate though to the essential
functions of the job. Some people choose to work in situations for
example where they are working completely alone nighttime security guard, long-distance
truck driver, that sort of thing because that’s the way they feel that they work the best
but assuming they are making more than the poverty level they’re not in a protected work
environment because that’s the nature of the job, right? But if a person has a job where typically
people are supposed to come 8:00 to 5:00 five days a week but the employer lets the veteran
not show up one day a week and yet pays him for that time or take a couple hours off every
week in order to go to therapy sessions, all those sorts of things, the more they make
changes that are in roads in the actual Job Description the more likely it is that the
person can be viewed as working in like I say what’s called a protected work environment
and still receive TDIU in addition to their income from their job. Maura: Okay. We actually have a question now that’s relevant
to this. This one is from Lexa. I’m not sure if it’s the same Lexa but if
so, thank you for hanging in there with us today. Lexa is asking if you own your own business
is that considered a protected work environment? Barb, do you want to take this one? Barbara: Well, those are always challenging
questions because it’s very hard to show that the employer is making the accommodations,
right? And that they are necessary. So, typically in those situations you are
going to need — to go back to having a vocational expert explain that this is the
only situation that you can be employed in but they’re very — self-employment is a very
challenging type of employment to show is protected. Maura: Okay. That helps. Seems pretty fact specific. Barbara: Definitely. Maura: Okay. There was a case you said before that VA has
yet to define what work in a protected environment means surprising and you recently were involved
in a case that dealt with that very issue. So, can you tell us a little bit about that
case and maybe what we can gain from it even if not a definition of what protective work
is? Barbara: Sure. The name of that case is Cantrell. In Mr. Cantrell’s case he was working full
time as a park ranger but he had significant disabilities that required that he take breaks
and that sometimes he go home, that sometimes he would have to leave the scene or call in
other co-workers to help. All of these were things that other people
on staff were typically not permitted to do but his employer valued him and valued the
fact that he was a veteran and so, he worked with Mr. Cantrell to allow him to continue
to work despite all those kinds of significant accommodations that were being made and so,
initially VA denied the claim without defining it and the Veterans Court issued a decision
instructing VA to come up with a decent definition of what protected work environment meant and
made it clear that the fact that he was working full-time was not a reason to deny him benefits. Maura: Excellent and in addition to vocational
evidence which I think is particularly important in protected work cases since there’s expertise
that’s needed to render opinions but I guess for anyone who’s not able to obtain a vocational
expert evidence that might be relevant if you are alleging that you work in a protected
environment would have to have bearing on what types of accommodations are being made
at work, how they deviate from the job description, how they differ from other employees, things
that the employer is doing at the employers own expense, things like that. Would you agree? Barbara: Yes, definitely. I mean there are documents such as those you
referenced written job descriptions, union contracts. Those sorts of things that explain what the
job is. You can get statements from people who used
to hold the job or people who are doing the same job that you’re doing to explain what
that– you’re not really doing everything that people who typically are in the job are
doing and yet you’re getting paid the same amount. Maura: Mm-hmm. Just a reminder to everyone we’re here today
at Chisholm Chisholm and Kilpatrick. My name is Maura Clancy. I’m here with Barbara Cook and Mike Lostritto. Today we’re talking about TDIU. If you’ve been tuned in with us throughout
this discussion we appreciate it and we hope you stay with us and if you’re just joining
us and have any questions about anything feel free to utilize the comments feed next to
this video and also to visit our website at CCK-law.com. Mike, I’m going to come back to you. Mike: Sure. Maura: A question that we see a lot is whether
TDIU benefits are considered permanent when they’re awarded. Can you tell us about whether that’s true
or what to look forward to know the answer to that question? Mike: Sure. So, the answer is they can be but not always. TDIU by its nature is considered a total disability
because it’s rated at 100% or effectively rated at the 100% level but it’s not necessarily
permanent meaning it will continue on into the future forever. You’ll typically know based on the decision
that grants TDIU if it also grants what’s called DEA benefits, that’s an indication
that the TDIU grant is permanent in nature but like I said it’s not always permanent
and so, what VA had done in the past was send out an annual form. I think it was 41-40, form 41-40. That was a form. It was an employment verification form and
essentially the veteran was required to complete the form, let VA know whether they had been
working during any period for the past year and submit the form and if they hadn’t been
working typically their TDIU benefits would continue. If they had been working for a one-year period
or greater then they may be at risk of potentially losing the TDIU benefit that they had been
granted. VA no longer uses this form. They now have replaced this with income verification
through the Social Security Administration. So, if you’re a veteran and you’ve previously
received form 41-40 and you no longer are doing so, you know, that’s the reason why
but really I think the fundamental question is if a veteran is receiving TDIU and they’re
worried about it being taken away, if it’s not permanent, it’s really whether there’s
a reasonable likelihood that the veteran in VA’s eye that the veteran is going to be able
to return to work working substantially gainful employment in the future and so, if for whatever
reason you know, a veteran goes to an appointment and there’s some evidence that indicates improvement
in their condition or some type of evidence that shows or VA think shows that they can
return to work then it’s possible at least that they could re-examine the TDIU grant
from the past but you know, if TDIU is permanent like I said it will typically show up on the
rating decision stating that the veteran has also been granted DEA benefits from a certain
date, that’s a good indication that TDIU is considered permanent in VA’s eyes. Maura: Sometimes I think they even include
language that says this will or will not be subject to future re-examination, something
like that. Maura: It’s not entirely consistent but that’s
another thing to look out for. So, go ahead. Mike: Yeah. They don’t make it entirely clear or easy
unfortunately. From what I’ve seen they don’t have a separate
finding that says, “Your TDIU grant is permanent, and it’s there very clear.” Unfortunately you have to read between the
lines oftentimes and yes. If it indicates in the decision that the veteran
is potentially going to be scheduled for a future examination that’s an indication that
the grant is not in fact permanent. On the other hand if the decision says that
the veteran will not be subject to a future examination, that’s an indication that the
grant of TDIU is in fact permanent. Maura: Barb, can you talk to us about the
interplay if any between TDIU and SSDI or Social Security disability insurance benefits? Barbara: Sure. So, as I mentioned before sometimes the evidence
or even the decision in a social security disability claim can be helpful in a TDIU
situation it VA sometimes will use it against the claimant because if for example Social
Security denies the benefit, denies Social Security disability benefits based on the Social Security
findings that the service-connected condition is not that severe, VA will use that against
the person but if they’ve granted, if Social Security is granted it based on that then
that’s very strong evidence that TDIU should be awarded. In terms of income a claimant can receive
both Social Security disability and TDIU. They typically are not going to be able to
get both SSI, Supplemental Security Income and TDIU since Supplemental Security Income
is a needs-based program. So if TDIU starts and the rate for TDIU is
I think about 2800? Maura: I think it’s closer to 32 —
Barbara: 3200 at this point. Barbara: So, SSI is far lower than that and
so, the person is not going to be able to collect both SSI and TDIU. Mike: Sorry. I was just going to jump in. Maura: That’s okay. Mike: You had me thinking when you mentioned
needs-based. I think it’s important to point out that TDIU
is not a needs-based benefit. So, you know regardless of how much or how
little the better may have in a bank account or personal wealth, that’s really not an issue
and won’t be examined by VA. It’s really comes down to that ability to
work. Maura: Mhhm. Definitely. So, a favorable SSDI decision that talks about
service-connected conditions might be relevant, persuasive, depending on how in-depth it is
as to the veteran’s service-connected disabilities but it’s not necessarily dispositive. So, just because you’re eligible for SSDI
and just because they mentioned your service-connected disabilities in awarding you that benefit
doesn’t necessarily mean that VA has to grant you TDIU. Barbara: Correct. When you say dispositive exactly it means
that it’s not going to dispose of. It’s not going to end the TDIU assessment. VA will still do its own assessment separate
and apart from Social Security’s assessment. Maura: Okay. We have relevant to this topic we have another
question from Lexa. Hi Lexa, thank you again for watching us today. The question is are there asset restrictions
for TDIU? Mike I think you touched on this by saying
that no they are not. Mike: Correct, yeah. TDIU is not what’s called a needs-based program
such as pension benefits and other benefits. It can be awarded regardless of how much or
how little the veteran has in personal wealth and so, the real determination comes down
to whether the veteran is able to work due to their service-connected disabilities and
that’s the inquiry. It doesn’t matter how much necessarily the
veteran has in bank accounts or you know, in real estate or any of those things. Maura: Another thing that doesn’t and shouldn’t
matter in TDIU cases is the age of the claimant right Mike? So, we do see, this is another mistake that
we see sometimes if a veteran is asking for TDIU and they have retired many years ago. Sometimes VA makes the mistake of saying,
“Well, they’re retired and they’re of retirement age. So, no TDIU.” Tell us about the role that age plays if any
and what you should do if you see that mistake? Mike: Yeah. So, put simply age is not supposed to be a
consideration when considering whether TDIU is warranted. You know, in our practice here we often see
you know, veterans who have retired maybe due to age but that really shouldn’t be a
factor in determining whether TDIU is warranted, it’s solely an inquiry as to the service-connected
disabilities and how those translate into you know, impairment on the veteran’s ability
to work and so, that goes both ways because we also see veterans who are you know, they’re
young. Maybe they’re in their mid to late 20s and
they may think that TDIU is not available to them because you know, they’re young and
you know, there’s a high emphasis in society on being able to go out and work and so, you
know the benefit might not be available to them but that’s also incorrect. It’s really not age is really not a factor
one way or the other in the determination as to whether TDIU was warranted. Maura: Great. That’s helpful. In 2017 I think it was, there was a discussion
about adding an age limit to TDIU benefits. So, sort of along the lines of the mistake
that we see sometimes from VA which is just that if you’re at a certain age and you’ve
retired they you know, sometimes they make the mistake of factoring that too heavily
into a decision to deny. So, they had proposed an age limit a couple
years ago. Do you know what’s happened since then? Mike: Yeah. So, in the budget a few years back they proposed
to stop paying out TDIU benefits to veterans who otherwise qualified once the age of retirement
hit and so, this was you know, this was proposed in the budget but there was as you can imagine
a large backlash and many veterans groups you know, came to the defense of veterans
and the current state is that I believe they backtracked from that proposal. So, my understanding is you know, currently
that proposal is basically dead. Maura: I hope that’s the case. That was a terrible idea in my opinion and
I’m sure you both agree but yeah, that’s a question that we do see sometimes. I know Mike you’ve seen it from people before. Mike: Sure. Maura: There is no age limit now. No definitive plans for an age limit to come
into play anytime soon. We’ll certainly stay updated on that if that
does come back into focus. You can bet that we’ll be all over it I think
because we all feel pretty strongly about it but it’s not a thing now which is good. I want to wrap up by talking to you both about
common pitfalls in TDIU cases. So, what are some mistakes that VA frequently
makes and we’ve talked about a few of these already today but just to wrap it up we might
touch on some of those same things again. In addition what are some mistakes or misunderstandings that a claimant who’s seeking TDIU benefits can avoid? What types of things should they know in proceeding
with their claims? Mike: So, we’ve already touched on it but
if VA requests that you fill out the 8940 form, you should fill out the 8940 form and
return it. You know, despite the fact that again like
we said it’s not technically a claim for TDIU or shouldn’t be treated as such you know, practically
speaking VA is going to require that you fill out the form and submit it for them to adjudicate
TDIU. So, it’s important that you provide them with
an accurate description as to your work history your accurate level of educational attainment
the date you last worked, make sure it’s as consistent as possible with what you’ve already
submitted and submit it in a timely manner. I would say that’s the first thing. The second thing is and we’ve talked a lot
about this already as well. The VA will oftentimes look to a non-service-connected
disability and use that as the reason why the veteran is unable to work. So, for instance maybe the veteran has a very
severe psychiatric disability that service-connected but also has a non-service-connected back
disability and yes it may be true that that non-service-connected back disability has
some impact on the veteran’s ability to work but remember the central inquiry here is whether
the service-connected disabilities and only the service-connected disabilities alone are
the cause of the veteran’s unemployability. So, VA is required to focus just in on the
psychiatric disability that’s service-connected and render the decision based on that so
if you see in a decision they are wandering off and considering non-service-connected
disabilities and perhaps weighing those in favor of them denying your claim. You should absolutely look to appeal that
and point that out. Similarly we see veterans unfortunately that
may draft a lay statement or an affidavit and include all of their disabilities whether
their service-connected or non-service-connected as the potential cause for their unemployability. So, it’s really important again just to remember
that really your focus should be on service-connected disabilities and the impact that those have
on your ability to work. Barbara: Another piece is that VA will in
almost every case schedule the veteran for an examination and an assessment of the limitations,
sometimes asking the physician to give an opinion as to whether the person can or can’t
work. There’s a couple things about that; one is
that as with every exam that a claimant goes through the veteran should be absolutely honest
about what’s going on. You know, it’s not a social occasion right? You walk in. The doctor says, “How are you doing today?” If you say, “I’m doing great,” or “I’m fine.” that gets written down even though you’re
in excruciating pain. You know, it’s best to be honest. “Today’s a good day but it’s the first good
day I’ve had for the past month.” Or, “Today’s a good day even though I didn’t
sleep well last night.” Or whatever the truth is is absolutely critical. I think it’s particularly hard in unemployability
cases because as Mike mentioned there’s a large emphasis in our society on being able
to work on the pride that goes with work and so, I think it’s difficult for some people
to say, “I really cannot work any longer.” Yet, if that’s the case that’s what the person
should explain. Lots of times I think people say, “Well I
can work.” Because they want to work and their heart
is in it but that physically or mentally they really are not able to work and so, people
just have to be aware of like I say being honest and as precise as possible about what
they’re talking about. Another piece about that is that as I said
the doctors are sometimes asked to give an opinion as to whether the person can work
that ultimate question in the case but as we’ve discussed, that person isn’t typically
not competent to describe that. They’re only competent to talk about the limits
that the individual has, not how that then plays into the ability to work. Maura: Sometimes I think something we see
across the Board is the unwarranted or undue emphasis on medical evidence over a lay statement. Sometimes a lay statement can be just as important
or pertinent to a veteran’s limitations. Sometimes they kind of gloss over the lay
statements in favor of things that are written down by doctors but that’s not necessarily
fair or true. Sometimes the lay statements if they’re from
competent persons can be very helpful in adjudicating these claims. They also say sometimes that you’re not at
the right schedular rating. So, you aren’t entitled to TDIU. As we explained earlier there’s no schedular
rating minimum. The question is whether you’re service-connected
disabilities and the effects that come from those are keeping you from working. I think the other thing that we had mentioned
before was not focusing on the combination of just the service-connected conditions. As Mike mentioned before something that we
see all the time is if there’s any reason to think that there’s a non-service-connected
disability in play that’s going to get a lot of airtime in VA decisions. They like to go back to the non-service-connected
heart condition that’s keeping you out of work and things like that. It’s really important not only for VA but
also for the person pursuing the claims to make sure that the focus is on the service-connected
limitations. Barbara: One of the other things that VA will
focus on to the detriment you know, in order to deny a claim, using it to deny a claim
is they will note that the veteran worked up until he was able to retire and so, since
they reasoned he could work, he or she could work before then of course this person could
work now and so, it’s important to understand a couple things about that; one is that obviously
conditions can get worse and so, the fact that the person was able to work up until
the time of retirement is not by itself evidence that they have the current ability to work. The other thing to recognize and this is where
a lot of lay evidence and honestly evidence again comes into play is that many people
work to retirement they’re there you know, they’ve been working as if they’re in a marathon,
right? So, they’re able to get across the finish
line but just barely and the fact that they hung in there through the last year or a couple
of years or whatever in order to get to retirement age is not evidence that they were really
as productive as they needed to be or that they really do still have the current ability
to engage in substantially gainful employment. Mike: Just another pitfall that I’ve seen
when VA considers TDIU going along with what we’ve already said also is VA really needs
to account for the veteran’s service-connected disabilities in combination or in totality
as they all interrelate with one another and not consider them solely or separately related. So, oftentimes we will see unfortunately VA
will consider each condition separately and consider whether that condition alone will,
that service-connected condition alone will impact the veteran’s unemployability but really
it’s how they all relate to one another and work in totality to affect the veteran’s ability
to work. Maura: The only other thing that I can think
of which we kind of touched on earlier was that the 8940 when you submit it, that’s not
necessarily the date of your claim that sometimes VA will say. First of all TDIU isn’t a free-standing claim. You can ask for TDIU without any other claims
pending but if you have increased rating claims pending or even service connection claims
that eventually get granted, TDIU is supposed to attach to those. So, a mistake that we common see especially
in light of appeals reform that has kind of thrown a whole other wrench into the operation
with claims that existed or that were pending before, appeals reform was implemented and
8940 is that were filed around that time or shortly after. There is just no telling what you’re going
to get for an effective date. So, definitely keep that in mind that TDIU
can attach to any open and pending appeal for an increased rating and don’t be afraid
to let VA know that they are doing the wrong thing if they’re just giving it the effective
date of the 8940. Mike: Yes. That’s a great point. Getting TDIU is great but make sure that you
know, the effective date as well is correct as well. Maura: Anything else you want to add? Barbara: I think we’ve covered everything. Mike: Yeah. I think that’s it. Thank you both for joining me today and thank
you all for tuning in and for hanging out with us. Like I said before we will make sure that
any additional materials or any other questions are responded to or posted in the comments
feed next to this video but thanks again for joining us and we’ll see you next time.

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