Total disability based on individual unemployability (TDIU) is a disability benefit that allows disabled veterans to be compensated at a 100% rate, even if the combined scheduler rating does not equal 100%. TDIU is only awarded in circumstances in which disabled veterans are unable to secure substantially gainful employment because of their service-related disabilities. Medical exams are critical to the determination of whether a veteran qualifies for TDIU, and if your physician gives you an incorrect decision, it can mean the difference of thousands of dollars of compensation per month. If you have received a decision for your TDIU claim that you believe is incorrect, you have options.
The VA has its own set of doctors who perform medical exams for TDIU and other compensation and pension benefit applications. However, exams with these professionals often cause high anxiety for disabled veterans and their results are not always favorable. In addition, exams by the VA for TDIU claims do not have to be completed by a trained physician, further complicating the issue. A doctor, physician’s assistant, nurse practitioner, or medical resident all technically qualify to give the exam at the VA, which can easily lead to an incorrect diagnosis for your case. An independent medical exam can either contradict an incorrect decision by the VA or confirm the diagnosis of disability for your TDIU claims.
VA doctors are inherently biased toward their employer, which is why an independent medical exam helps when applying for TDIU benefits. An independent medical examiner is a physician who has never treated you before and has no ties to the VA. An independent examiner is simply presented the facts in your medical history, service records, lay evidence, and statements, and will then complete an examination and make a diagnosis of disability.
The easiest way to find an independent medical examiner to reevaluate your TDIU claims is through an experienced disability benefits attorney. Attorneys with expertise in this area routinely utilize independent medical examiners for their cases and will be able to quickly set up an appointment for your case. Another option is to search the Independent Medical Examiners Directory or the American Board of Independent Medical Examiners to find one near you. Ho9/wever, if you find an independent medical examiner on your own, you will not have the additional benefits of an attorney advocating for your interests and helping you navigate the system.
One of the first questions you may have about your VA disability claims is what starting date will be assigned to your claim. Are disability claims retroactive? Do they have a starting date only when a claim is finally accepted by the VA?
This article explains when and how retroactive or back pay benefits are calculated and paid.
Back pay or what the VA calls retroactive benefits is the lump sum payment for benefits which have been accruing since the filing of a granted claim. The retro benefits come in a lump sum – paid all at once — after the grant of benefits. All other benefits awarded in connection with the claim are referred to as future benefits, paid in monthly installments.
The amount of entitled back pay or retroactive benefits is determined by the so-called effective date, which is the later of two dates: 1) the date of the filing of the claim, or 2) the date when the disability manifests or increases.
The first date is fairly simple to understand, the second is more complicated.
For most claims, the date of the claim determines the effective date. Take, for example, a claim to entitlement to service-connected back disability filed on January 1, 2010. The claim is denied by the regional office on February 1, 2012 and appealed, then later remanded by the Board of Veterans’ Appeals on March 1, 2015, and then ultimately granted by the regional office on April 1, 2017 at a disability level of 30%.
The most likely effective date would be January 1, 2010, the date of the claim. Therefore, the claimant would be entitled to back pay from January 1, 2010 to April 1, 2017 at a 30% disability rate, and then monthly installments thereafter at the same disability rate.
Now, as stated above, for most claims, the date of the claim determines the effective date. But not always, and we see exceptions apply particularly for increased rating claims.
Let me illustrate the point. A claimant, who has a 30% rating for his service-connected back disability, files a claim for an increased rating on January 1, 2010. On February 1, 2011, the claimant undergoes a VA medical examination, and the physician finds that the claimant’s back disability has not worsened.
The regional office denies the increased rating claim and the claim is appealed to the Board of Veterans’ Appeals. The Board remands the claim, instructing the regional office to obtain another VA examination. On March 1, 2015, the claimant sees the second VA examiner, who determines that his back disability has increased to a 50% disability level, but only recently, at or near the time of the second examination.
Here, the effective date would be determined by date of the increase of disability, March 1, 2015, not the date of the claim, January 1, 2010.
An unadjudicated claim refers to a claim which remains open due to an oversight in VA system.
This can occur during different stages of a claim. In the past, (before the VA instituted mandatory application forms), claimants would often file a morass of written submissions.
Buried in these submissions might be statements requesting service-connected benefits, constituting informal claims. Overwhelmed by all the busy text, a VA adjudicator might overlook or even ignore these informal claims.
In theory, upon the claimant’s request, these claims can be activated at any time, with a potential effective date relating back to the filing of the claim.
Unadjudicated claims can also arise during the appellate stage. For instance, a claim will remain unadjudicated if the VA fails to issue a Statement of the Case following the timely filing of a Notice of Disagreement.
Likewise, a claim will remain unadjudicated if the Board of Veterans’ Appeals fails to adjudicate a claim following the timely filing of a Substantive Appeal.
For effective dates, unadjudicated claims can be gold mines. Recall that effective dates are usually determined by the date of the claim. Therefore, if you find an unadjudicated claim in the file, which has remained dormant for years, maybe even decades, the entitled retroactive/back pay may reach as far back as the filing date of the unadjudicated claim.
Yes, in a few instances, claimants can be awarded benefits prior to the filing date of their claims.
Newly Discharged Veterans
If a newly discharged claimant files a claim within one year of his military separation, the effective date of his award may go back to his date of discharge.
I say may because the date of the claim is not the only factor; the date the disability manifested must also be considered. Let’s take a veteran who was discharged on January 1, 2018, and files a claim for service-connected back disability on December 1, 2018.
The medical evidence establishes that his back became disabling sometime around May 1, 2018. May 1, 2018 – not January 1, 2018, the date of discharge – will be the assigned effective date.
Increased Rating Claims
An effective date for an increased-rating claim may date back as much as one year before the date of the claim for increase if it is factually ascertainable that an increase in disability had occurred within that timeframe.
Hypothetical: On January 1, 2010, the claimant files for an increased rating for his service-connected back disability in excess of 30%. At the time he filed his claim, there was a medical opinion dated May 1, 2009, showing a 50% disability level. Therefore, May 1, 2009 will be the effective date for the increased 50% disability rating, even though the claim was filed on January 1, 2010.
Agent Orange Exposure Claims
Special rules apply to claims for service-connected Agent Orange-related diseases listed as presumptive service-connected conditions.
From time to time, the VA adds a new condition to the list of presumptive service-connected conditions. If, between September 25, 1985 and May 3, 1989, the VA denies a claim for a condition which was not then listed as a presumptive service-connected condition, but then later grants a claim for the same condition as a newly listed presumptive service-connected condition, the effective date will be the date of the claim previously denied.)
No matter what, a claim is only a claim for VA purposes if it is a written request for benefits.
There are countless stories of veterans telling VA adjudicators or veteran service officers of their desire to file a claim, but, for whatever reason, no written claim is filed. And, the VA does a poor job of notifying veterans they have a potential claim. It is unfortunate because, except for the minor exceptions listed above, the effective date of an award can be no earlier than the date of the written claim.
For the longest time, a request for a total disability award based upon individual unemployability (“TDIU”) was considered its own claim.
That meant the effective date of a TDIU award could be no earlier than the date of a written TDIU request. In an important case, Rice v. Shinseki, the Veterans Court redefined the status of a TDIU request as an issue tied to a claim, but not a claim in itself. Rice said that the service-connected condition upon which the TDIU was based was the claim, and that the TDIU request was a theory or issue in support of the claim to achieve the highest possible rating.
Rice is good news for assigning earlier effective dates for TDIU awards. Effective dates for TDIU awards can now go back to the date of the underlying claim; whereas before Rice, the effective date was limited to the filing date of the written request for a TDIU award.
The effective date assigned will depend upon when the medical evidence shows the claimant’s service-connected disability(ies) prevented him/her from obtaining and maintaining substantial gainful employment.
File your VA disability claim as soon as you determine you might have one. Do not rely on the VA to notify you that you may have a potential disability claim. Because the effective date of an award is usually no earlier than the date of the written claim, delay in filing a claim is usually just leaving monetary benefits, to which you as a veteran are entitled, on the table.
See how much you are owed. Use our benefits calculator to put in your unique situation and see what your pay could be.
The VA processes huge volumes of paperwork on veteran disability claims and because of that, sometimes information gets overlooked and inappropriate denials of benefits made. You can assist the Decision Review Officer determining your TDIU claim for 100% disability, by assembling a solid package of evidence for the VA for both the medical/disability factor, and for the unemployability factor.
If a veteran has been terminated from their former employment for reasons related to service-connected disabilities, the VA MUST consider that in its decision. You can help them do that by providing as much of the following types of evidence as you can –
Veterans Law Group specializes in helping veterans and their families get all of the veteran disability claims benefits to which they are entitled and can assemble the necessary information for appealing a TDIU denial.
Fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge.
One of the most challenging things for disabled veterans after their discharge from the military is getting accustomed to life with disabilities and another is handling the paper-intensive, bureaucratic process of getting the proper amount of disability benefits. Sometimes mistakes are made in paperwork, or necessary documentation is missing to support certain ratings, and a veteran and his or her family may end up not getting benefits which they are entitled to receive.
When dealing with the disability benefits process with the VA its helpful to treat a denial as an invitation to re-evaluate your application and get some expert assistance in moving past the denial with more information or a changed strategy. One example is a denial for TDIU because the veteran’s disability rating is too low.
As a refresher, TDIU (total disability individual unemployability) is an additional route to getting a 100% disability rating. If you have been denied TDIU, it’s worth re-evaluating several aspects of your claim to see if the denial can be overcome.
A good place to start is the underlying individual disability ratings. Under 38 CFR 4.16(a), one of the criteria for TDIU is the veteran having one service-connected disability with a 60% or more disability rating, or two or more service-connected disabilities with a combined rating of 70% or more. If the VA has concluded you are not eligible for TDIU because your disability ratings do not meet those thresholds, it’s worth re-evaluating those ratings to see if they can or should be increased. If you can get an increase in disability ratings such that they meet the threshold for TDIU, then you may be able to get a changed ruling.
The second criteria for TDIU is medical evidence of unemployability Sometimes medical records clearly reflect aspects of the disability that would reflect unemployability – for example, if the veteran’s doctor notes that because of a service-connected back injury, the veteran cannot stand stationary for more than 10 minutes at a time, or sit stationary for more than 30 minutes at a time with lying down to rest – the medical evidence of unemployability is not hard to decipher. However, sometimes medical records are not so clear in the connection between employment and the particular disabilit(ies) of the veteran. Mental health disabilities are often not documented in a way that makes it immediately apparent that the veteran is unemployable. Additional medical records can be obtained, or a vocational expert retained, to connect the dots between the medical records and the unemployability.
Finally, there is a fallback provision in 38 CFR 4.16(b) that allows for extra-schedular consideration of a TDIU claim, for claims that aren’t as obvious. Though extra-schedular consideration often also requires an appeal to the BVA, they are sometimes approved.
Has your TDIU claim been denied? You might need a second opinion. Veterans Law Group specializes in helping veterans and their families get all of the veteran disability claims benefits to which they are entitled. Fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge.
Applying and getting approved for veteran disability benefits can sometimes seem more daunting than some of the missions you ran while still in the service. It’s frustrating, yes, but the bottom line for the Veterans Administration is to ensure that all veterans who are unable to hold substantially gainful employment because of service-connected disabilities be rated 100% disabled and obtain the benefits going along with that rating.
This is a catch-all provision that allows consideration of a veteran’s claim even when the usual requirements of subsection (a) are not met. To recap, the VA generally refers to a claim as a TDIU claim when the two conditions are met: 1) a veteran has one service-connected disability with a 60% or more disability rating or has two or more service-connected disabilities with a combined rating of 70% or more, and 2) there is medical evidence of unemployability.
If the veteran satisfies these two conditions, then he will be entitled to a 100% disability rating, even though he does not satisfy that 100% disability rating under the schedule. See 38 C.F.R. § 4.16(a). An extra-scheduler rating, on the other hand, applies to veterans who are unemployable due to their service-connected disability(ies), but whose disability(ies) does not meet the percentage requirements under § 4.16(a). See 38 C.F.R. §4.16(b.) A veteran can be rated 100% disabled under both a TDIU or extra-schedular theory. See Bowling v. Principi, 15 Vet.App. 1, 5-9 (2001).
Truth is that the Director of Compensation and Service routinely rejects referrals for extra-scheduler consideration in terse, poorly-reasoned decisions and thus most of these cases often require an appeal to the Board of Veteran Appeals to be successful.
Have you been turned down for a TDIU rating of 100% disability and think the decision was wrong or perhaps requires an appeal to the BVA? Let the team at Veterans Law Group provide you with a free consultation to see if they can help. VLG specializes in veteran disability claims and brings that weight of expertise in assisting all of our clients. Fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge.
As a military member, you do whatever task is assigned to you with a sense of duty. Therefore, it’s not much of a surprise that after discharge, veterans take on whatever job opportunities they may have with that same sense of duty. What they don’t know is that even if they have managed to find a job that allows them to work in spite of disabilities, particularly dealing with PTSD, they may still qualify for TDIU, total disability individual unemployability. They may qualify for TDIU because they are working in a “protected environment” job.
Civilian jobs for veterans come in many different forms and sometimes a veteran may be earning income above the poverty threshold, but still be eligible for TDIU (total disability individual unemployability). That is because the veteran is working in a “protected environment” job.
What is a protected environment job? Simply put, it is a job where the veteran is receiving special accommodations that are not normally found in the general labor market. A common example is when the veteran works at a family business or for a friend, where his or her employer is fully aware of the veteran’s disabilities and makes accommodations around them, that would not generally be available in the workplace.
In the case of psychological issues, for example, they may have a relaxed policy on absences when the vet is having “bad days” or suffering from anxiety attacks or continue to maintain employment despite frequent angry outbursts or other behavior inconsistent with what an ordinary employer would allow from his/her employees. Perhaps a back injury limits the amount of time the veteran can stand or sit without lying down to rest, and the employer allows an accommodation by allowing the veteran to work from home for these needs, or provides extra break times.
The bottom line on protected environment jobs is that the veteran cannot get a similar job on the open market place and thus, may well be considered unable to hold substantially gainful employment, and thus may be TDIU rated by the VA.
Are you working in a protective environment job and want to know whether you qualify for a TDIU determination? Veterans Law Group specializes in working with disabled veterans to obtain the maximum disability benefits to which they and their families are entitled. Fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge.
A common trait of veterans is that they work hard, push towards gaining their objectives, and never admit defeat. Unfortunately, sometimes that means that they overlook the severity of the challenges they are facing in maintaining gainful employment after discharge. Family members never want to disparage a veteran’s work efforts, but having one job after another and the bills start to pile up, it’s worth stepping back and evaluating whether difficulty in employment may be due to service-connected disabilities.
The inability to sustain substantially gainful employment is one of the eligibility requirements for getting a TDIU (total disability individual unemployability) finding.
Marginal employment is not be considered substantially gainful employment. What is “marginal employment”? There are two ways to determine whether a veteran’s employment is considered marginal, and not substantially gainful.
One way to evaluate employment is to look at annual income for several years. Marginal employment is deemed to exist when a veteran’s earned annual income is below the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold. These thresholds are published every year. For 2017, the amounts were $12,752 for those under age 65, and $11,756 for those age 65 and over, and are higher for families with dependents. If you don’t know what your (or your spouse’s) annual income is, an Earnings Report can be requested from the Social Security Administration.
Keep in mind that other VA disability benefits, or Social Security disability benefits, you may be already receiving are not taxable income and thus are not included in the taxable earnings used to decide the poverty thresholds.
The other means of evaluating employment for this purpose is to look at the specifics of a veteran’s place of employment. Marginal employment may also be held to exist, on a fact found basis when earned annual income exceeds the poverty threshold, but the employment is in a protected environment, such as a family business or sheltered workshop, that makes work accommodations for the veteran that would not otherwise be available. Consideration is given in all claims to the nature of the employment and the reason for termination.
Do you think you or your veteran spouse may not have substantially gainful employment and may be eligible for TDIU benefits? Veterans Law Group has helped thousands of other veteran families just like yours and are happy to help.
We know that veterans joined the military because they wanted to serve their country, not because they wanted to navigate bureaucratic mazes to claim benefits to which they are entitled. Trying to figure out both Social Security and VA benefits at the same time can be particularly daunting.
Let’s simplify things a bit. Yes, a veteran can receive both VA service-connected disability benefits and Social Security benefits. However, it is important to note that receipt of one does not guarantee receipt of the other and a veteran generally cannot receive both a VA pension (different from disability benefits) and Social Security at the same time. VA pension differs from VA service connected disability by whether the disability was caused or aggravated by military service. VA pension was designed to help veterans that have a non-service connected disability and are struggling financially because of the disability.
It’s important to understand that sometimes a veteran may have received a Social Security disability award that lists multiple grounds, for example, PTSD and a back injury. When Social Security makes those awards, they are not factoring any service-connected factors that the VA would look at to determine TDIU. In this situation, sometimes the VA will deny TDIU to a veteran in this example because the VA shows that only the PTSD is service-connected, but the back injury is not. That doesn’t necessarily end the issue, however. If you can present evidence to the VA that the veteran is unemployable solely because of service-connected reasons (for example, maybe the veteran was having violent outbursts at work as a result of their PTSD, but could have worked through the back injury issue), the VA may then approve TDIU.
If you have been denied TDIU because of an apparent conflict between a Social Security award and a VA TDIU claim, you owe it to yourself to get another opinion on whether you may be eligible.
After veterans are discharged from active duty it sometimes takes awhile to reintegrate into civilian life and a suitable civilian job. Bumps in the road are expected, of course, but sometimes it seems impossible to maintain steady work, sometimes because of symptoms from service-connected disabilities interfering with expected work responsibilities. One example are individuals that suffer from PTSD, who miss too many days of work because of anxiety attacks or depression.
At a certain point, it may be necessary to look into whether a veteran is eligible for TDIU (total disability individual unemployability) benefits. This is not to say that the veteran will give up trying to work, but acknowledging that perhaps he or she isn’t able to maintain substantially gainful employment through no fault of their own, and needs to look into accessing disability benefits that were part of the deal when they signed up for the military.
One of the eligibility requirements for TDIU is a showing that the veteran cannot sustain substantially gainful employment. One of the most direct means of showing this to the VA is by producing income records for the past several years showing the veteran’s income during relevant years.
Getting a printout of Social Security earnings records is a straightforward process. The form that you need to file with the Social Security Administration office is the SS-3288 Consent to Release Information form. This can be accessed at www.ssa.gov or by visiting a Social Security office. Request and review these records to see the real picture of the veteran’s income over the years since discharge (you might be surprised) and then compare them against the annual poverty level numbers (available from the U.S. Department of the Census).
Get this earning record before you complete the VA Form 21-8940 which is the TDIU application.
Do you need help determining whether you or your veteran spouse might be eligible for TDIU benefits? Veterans Law Group is ready to help you, just as it has for thousands of other veteran families. Fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge.
It may be years since you left military service and as time passes, sometimes it can be hard to know what parts of your life are still affected by your sacrifices of service, and which ones are just part of civilian life. This is a very important question when it comes to evaluating your eligibility for veterans disability benefits, especially when you both have service-connected disabilities and non-service-connected ones.
Does having a non-service-connected disability preclude you from getting rated TDIU (Total Disability Individual Unemployability)? No, but it doesn’t get factored into the decision-making process. Let me explain.
TDIU is a determination of 100% disability through evaluation of certain disability ratings that are either individually or collectively above certain levels, and medical evidence of unemployability. In that determination process, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded. However, if the percentages referred to in the rules for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable, then the TDIU will be approved.
Don’t just sit and wonder whether your disabilities qualify you for TDIU? Contact Veterans Law Group whose staff spends all their time helping veterans just like you, helping you and your family with legal assistance in navigating the VA disability benefits process.
To get started, simply fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge.
Getting injured while serving your country usually happens quickly, but recovery and adjustment to any resulting disability is slow and painful at best. Trying to navigate the procedures for obtaining disability pay afterwards may just seem like one final hill too many. Maybe we can simplify things a bit.
Total Disability Individual Unemployability (TDIU) is a theory for getting a 100% disability rating if certain conditions are met. The first of those conditions is a specified percentage of disability rating, a percentage that can either be met directly with one service-connected disability with a 60% or more disability rating, or a combination of disability ratings that equal 70% or more. The math is a little complicated because sometimes you can add up lower percentage disability ratings into a single, higher rating for purposes of TDIU analysis. Here’s how the math works.
The law identifies five scenarios where multiple disabilities will be considered as one disability for TDIU purposes, either for one 60% disability or one 40% disability.
1 – Where there are multiple disabilities of one or both upper or lower extremities, they will be combined into a single disability rating. An example of this would be a left leg rated at 40% disability and left knee rated at 30% disability. These two disabilities should be combined for a single disability rating of 70% for purposes of TDIU.
2 – Where there are disabilities resulting from common etiology (common cause) or a single accident. For example, if a veteran has diabetes mellitus rated at 20% and peripheral neuropathy of left and right lower extremities associated with diabetes rated at 20% each, and all three disabilities have a common etiology of agent orange exposure, they must be combined into a single disability of 60% for purposes of TDIU evaluation.
3 – Where the disabilities affect a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric. For example, nonunion of right tibia rated at 40% disability and right ankle ankylosis rated at 20% disability should be combined into a single disability of 60% for TDIU purposes.
4 – Where there are multiple injuries in action. Although the regulation does not define the term “action,” it likely means combat or combat-related action. For example, residuals of shell fragment wound to the right buttock for muscle injury rated at 20% disability, residuals of shell fragment wound to the left buttock rated at 20%, and residuals shell fragment gunshot wound of the left auxiliary area at 20% disability, must be combined into a single disability of 60 percent disability, for TDIU purposes.
5 – Where there are multiple disabilities incurred as a result of being a prisoner of war. Under this final provision, all service-connected disabilities at either 60% or 40% in combination meet the first requirement for TDIU.
Do you think you might be eligible for TDIU? Let Veterans Law Group help you wade through the process of figuring out if you are. VLG works extensively with veterans and their families, providing legal assistance in navigating the VA disability benefits process and helping you obtain the maximum benefits you may be entitled to receive.
To get started, simply fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge.