A request for a Total Disability Award Based upon Individual Unemployability (abbreviated “TDIU”) is an excellent way for veterans to obtain their maximum entitled benefits. TDIU benefits provide the same monthly compensation as 100 (one hundred) percent schedular disability awards. The standard for a proving TDIU issue is whether the veteran’s service-connected disability(ies), alone/independently, preclude obtaining or maintaining substantial gainful employment (i.e., a job earning above the federal poverty level, now about $14,000 annually). Stated otherwise, substantial gainful employment must be “realistically[,] within [the veteran’s service-connected] physical and mental capabilities.” Moore v. Derwinski, 1 Vet. App. 356, 359 (1990).
In representing veterans, The Veterans Law Group (VLG) has seen many and various erroneous TDIU denials. Veterans need to be vigilant in reviewing unfavorable TDIU determinations for possible errors, and to make sure to timely appealing those decisions.
Here is what to look for:
1) TDIU Determinations Which Consider Non-Service-Connected Disability(ies)
In many situations, a veteran’s inability to maintain substantial gainful employment (earning above $14,000 annually) may be caused by service-connected and non-service-connected disabilities. In deciding TDIU issues, VA adjudicators may not consider the effects of non-service-connected conditions on employability. (“[T]he central inquiry in determining whether a veteran is entitled to TDIU is whether that veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993).
Frequently however, a negative decision will reason that both service-connected and non-service-connected disabilities cause unemployability. That is a flawed decision. As the Court of Appeals for Veterans Claims put it:
Even if, as it appears, the [VA] determined that appellant’s unemployability was a result of … non-service-connected [disability] its task was not finished. The [VA] still was required to decide, without regard to the non-service-connected disabilities . . . , whether appellant’s service-connected disabilities are sufficiently incapacitating as to render him unemployable.
Pratt v. Derwinski, 3 Vet.App. 269, 272 (1992).
And, if the VA adjudicator cannot determine by persuasive evidence whether a veteran’s unemployability is caused by his non-service-connected disabilities or by his service-connected disabilities, then the adjudicator should grant TDIU benefits under the benefit-of-the-doubt rule. Fluharty v. Derwinski, 2 Vet. App. 409, 413 (1992).
2) VA Adjudicators Must Carefully Evaluate the Veteran’s Specific Service- Connected Limitations
In denying TDIU issues, VA adjudicators often give very generic, non-specific reasons. VA disability law, however, requires adjudicators to undertake a more studied review, analyzing the veteran’s specific service-connected impairments and limitations to determine if they are compatible with the job duties seen in the competitive labor market.
For physical disabilities, VA adjudicators must consider the veteran’s capacity to lift, bend, sit, stand, walk, climb, grasp, type, or extend, and also to consider any hearing and visual limitations. For example, a veteran with a sitting tolerance of no longer than ten (10) minutes due to service-connected back pain will not be capable of sedentary/desk-type employment.
For mental disabilities, VA adjudicators must consider the veteran’s capacity for memory, concentration, for adaptability to changing roles and demands, for handling workplace stress, or for effectively working with coworkers, among other factors.
For TDIU requests based upon service-connected physical and mental disability(ies), the ultimate question is whether the evidence demonstrates the veteran’s reliability and productivity for substantial gainful employment, notwithstanding his/her impairments.
See Ray v. Wilkie, 31 Vet. App. 58, 73 (2018)
3) Going to School or Pursuing Hobbies Is Not Fatal to a TDIU Claim
Substantial gainful employment generally requires a veteran to follow a normal full-time 8-5 work schedule. Veterans who engage in part-time activity cannot be considered employable based upon their limited pursuits. For example, a veteran capable of working around the house cannot be equated with the ability to show up for work every day. Friscia v. Brown, 7 Vet.App. 294, 297 (1995) (“hard work around one’s own house and in one’s own yard does not necessarily have a correlation with the ability to engage in substantially gainful employment”); Carradine v. Barnhart, 360 F.3d 751, 755-56 (7th Cir. 2004) (the adjudicator “failed to consider the difference between a person’s being able to engage in sporadic physical activities and her being able to work eight hours a day five consecutive days of the week”).
Likewise, attending school is not evidence of a veteran’s employability. It does not require the same time commitment and mental endurance/discipline as substantial gainful employment. Washington v. Derwinski, 1 Vet.App 459, 465 (1991) (rejecting the Board’s conclusion that because the appellant attended school he was employable because “the skills needed to attend school are different from the skills needed to compete successfully in the workplace”).
Moreover, engaging in part-time hobbies is rarely evidence of employability. “A person’s ability to engage in personal activities such as cooking, cleaning or a hobby does not constitute substantial evidence that he or she has the functional capacity to engage in substantial gainful activity.” Singh v. Apfel, 222 F.3d 448, 453 (8th 2000).
4) Work & Educational History Must Be Considered in TDIU Determinations
TDIU determinations require VA adjudicators to undertake an individualized assessment of the veteran’s work history and educational achievements. For instance, if a veteran can no longer continue his/her former job due to service-connected disability(ies), and if the veteran’s past work experience or educational level is limited, a VA adjudicator must carefully consider whether he/she is realistically suitable for different substantial gainful employment. There are many cases so holding. See e.g., Friscia v. Brown, 7 Vet.App. 294, 295-97 (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet.App. 532, 534 (1994) (finding unemployability in light of veteran’s eighth grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet.App. 356, 357 (1991) (VA adjudicator must consider veteran’s master’s degree in education and his part-time work as a tutor); Hatlestad v. Derwinski, 1 Vet.App. 164, 168 (1991) (level of education is a factor in deciding employability); Flaherty v. Derwinski, 2 Vet.App. 409, 411 (1992) (Board of Veterans’ Appeals erred in denying TDIU claim without discussion of veteran’s education and work experience in case where it found veteran precluded from “physically demanding” work).
5) A VA Examiner’s Failure to Opine on the Veteran’s Employability Cannot Be Used as Evidence of Employability.
When VA examiners do not provide an opinion about a veteran’s unemployability, the absence of such opinion is not evidence against the veteran’s TDIU claim. For instance, a VA examiner’s opinion stating that the veteran’s service-connected disability interferes with employment does not answer the question of whether he/she is unemployable. Thus, the VA adjudicator cannot rely upon the examiner’s silence on the TDIU question to deny a TDIU claim. Delrio v. Wilkie, 32 Vet. App. 232, 241 (2019).
In such cases, veterans can take different tacks: 1) Ask the VA adjudicator to return the DBQ to the examiner to provide a complete answer to the TDIU question, 2) Argue that the examiner’s finding of interference in employment is enough to demonstrate insufficient productively and reliability for substantial gainful employment, or 3) Obtain an opinion from a private Vocational Expert stating that the examiner’s opinion supports a finding of TDIU.
6) TDIU requests Are Not Claims, They Are Issues
It is very important to keep in mind that TDIU requests must be characterized as ISSUES, NOT CLAIMS. The VA frequently makes this mistake. This distinction may seem like a trivial semantical difference. But it is not. The effective date of a claim (the date in which disability payments commence for a disability award) is usually determined by the date of the claim. But TDIU requests piggyback on the underlying service-connected claim(s) and thus are not claims in themselves. “[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 [a total disability rating] for a disability or disabilities…” Rice v. Shinseki, 22 Vet.App. 447, 453 (2009). This matters for determining the proper effective date for TDIU awards.
Let’s take an example. A veteran files a claim for service-connected PTSD in November 2018 and is granted service-connection for this condition at seventy (70) percent in November 2022. The effective date of the disability award is thus determined to be November 2022. Now, let’s add a TDIU request to this hypothetical in which a TDIU request is filed in January 2020, alleging unemployability as of January 2016 due to PTSD.
The effective date of the TDIU award should be November 2018, the date of the PTSD claim, NOT January 2020, the date of the filing of the TDIU request.
