A disabled veteran will receive compensation at the 100% rating level if his/her service connected disabilities prevent the veteran from being able to get a job and keep the job. A Total Disability Rating Based on Individual Unemployability (TDIU or IU) is possible even if the veteran’s service connected condition does not equal a 100% disability rating.

Getting a 100% schedular rating can be hard if you are trying to combine multiple disabilities in order to reach the 100% rating. This is because of how the VA uses the "combined rating table". The alternative IU route can make it easier to get the same benefits that are available with a combined rating of 100%. If you have disabilities related to your military service which keep you from being able to hold a job then you should be eligible for IU.

Unemployability is the VA’s way of admitting that, even though your combined ratings do not amount to 100% rating, some veterans still cannot work due to their disabilities. The VA determines a veteran’s entitlement to IU by looking at your abilities, regardless of whether an average person would be unemployable under the same circumstances.

We will discuss some common questions about IU so you know what the VA is looking for when it decides your claim for IU.

How do I know if I’m eligible for IU?

What constitutes eligibility for IU? VA regulations provide that if a veteran cannot work—cannot engage in substantially gainful employment (SGE)—due to service connected conditions, he or she is unemployable. “Gainful employment or SGE” is defined as the ability to hold a job which pays more than or equal to the poverty level set by the federal government.

The main issue in determining whether or not a veteran is entitled to IU is whether his or her service connected disabilities prevent him or her from obtaining and maintaining SGE. In other words, are you able to find a job that pays enough to put your earnings over the poverty level? And are you capable of keeping such a job if you are able to find one? If your service connected physical or mental disabilities impair your ability to find and keep a job, you may be entitled to IU.

What are the scheduler requirements for IU?

 

When the VA is evaluating a claim for IU, the first thing it will look at is whether the veteran meets the schedular requirements for IU. They are as follows:

• Veterans with only one service connected condition must be rated greater than or equal to 60% for that condition;

• Veterans with two or more service connected conditions must have at least one condition rated greater than or equal to 40% with a combined rating greater than or equal to 70%;

• For the purposes of the IU regulation, the following combinations may be considered a “single disability”;

• Disabilities of one or both upper extremities, or lower extremities, including the bilateral factor;

• Disabilities resulting from a common etiology or single accident;

• Disabilities affecting a single body system (i.e., orthopedic, respiratory);

• Multiple injuries incurred in action; and/or

• Multiple disabilities incurred as a POW.

Examples:

1. A veteran suffers from several service connected disabilities such as diabetes and diabetic retinopathy and neuropathy. These disabilities arise from a common cause (the veteran’s diabetes mellitus). Therefore, according to regulations, the rating for these disabilities need only combine to a 60% evaluation in order for the veteran to qualify for TDIU.

2. A veteran has been service connected for his Lumbar Spine condition at 40%, his left knee at 30%, and his PTSD condition at 30%. Following the combined ratings math used by the VA, the veteran’s total percentage is 70%. Because the veteran has one service connected disability rated at 40%, and because his total rating is 70%, the veteran meets the schedular requirements for IU.

There are a few important things to remember about the schedular requirements for IU. First, when making a determination on IU, the VA can only consider disabilities that have already been service connected. If a veteran is service connected for his knees and his back, but in reality could not work due to his PTSD-related anger outbursts (which have not been service connected but are part of a pending claim), the VA will only consider the knees and the back when deciding if the veteran can work or not. Until service connection is granted for PTSD (if at all), the veteran must prove that he cannot work due to his knees and back condition alone, as opposed to the PTSD.

Second, and on a related note, the VA cannot consider non-service connected disabilities when making a determination on IU. For example, if a veteran has a 70% service connected rating for PTSD and a non-service connected back disability, the VA must review the veteran’s ability to work solely as it pertains to the service connected PTSD. Even if the veteran is receiving worker’s compensation or Social Security Disability for the back injury, which would indicate that another governmental organization recognized that the veteran could not work due to his back, the VA cannot use this information against the veteran. After all, the veteran may not be able to work for more than one reason.

Third, the age of the veteran is not a factor when qualifying for IU. This means the VA cannot say that because the veteran is a certain age he or she would not be able to work due to the veteran’s age alone.

What if I don’t meet the scheduler requirements for IU?

If you do not meet the 60%/single disability or 70% combined/40% single disability requirement, it still may be possible for you to be awarded IU. VA regulation 38 C.F.R. § 4.16(b) recognizes that some veterans will be unable to work because of their service connected disabilities, but may not meet the schedular requirements. In such cases, the claim is submitted to the Director of the Compensation and Pension Service for extraschedular consideration. The regional office is required to prepare a “full statement as to the veteran’s service connected disabilities, employment history, educational and vocational attainment and all other factors bearing on the issue.” As you can imagine, this is not a quick process, and receiving an award of IU based on extraschedular consideration can take a long time. Also, note that it is very rare for the Regional Office to refer a claim for IU for extraschedular consideration without a specific request from the veteran for consideration under 38 C.F.R. § 4.16(b), so if you believe your claim warrants such consideration, it is best to make the request sooner rather than later.

The standard for awarding IU on an extraschedular basis is that the case must present an exceptional or unusual disability picture with factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Because these cases are granted on an individual basis, it is a good idea to present evidence that shows why the veteran’s particular circumstances render him or her unable to work, such as work background, education background, and periods of hospitalization. Again, note that these are very difficult cases to win, but not impossible. The best thing you can do is gather as much evidence as possible, including an independent medical opinion, which shows that your unique circumstances render you unable to work due to marked interference with employment or frequent periods of hospitalization.

How do I apply for IU?

Interestingly enough, you may have already applied for IU without knowing it. A claim for entitlement to IU is not always a separate, free-standing claim. A veteran can file VA Form 21-8940, Application for Increased Compensation Based on Unemployability, at any time to establish a claim for IU. However, if the issue of unemployability is properly raised by the record in conjunction with a claim for service connection or a claim for increased rating, then the VA should consider the issue as part and parcel of the underlying claim, whether or not the veteran has specifically requested IU. But, it is very rare for the VA to address TDIU/IU without the veteran raising the claim first, and the VA Regional Office will not grant IU without the veteran submitting VA Form 21-8940, so if you think you are eligible for IU, it is better to start the claim by submitting the required form.

VA Form 8940 is a rather complex and confusing form so do not hesitate to contact Hale Law Office at 1-800-522-4595 for help!

Section I

Section I of the form deals with Disability and Medical Treatment. In this section, the veteran is asked to answer what disability keeps him or her from working. Remember, the veteran’s service connected disabilities must be the primary reason he or she is unable to work. If there are any non-service connected disabilities involved, then the veteran should get a statement from a doctor as to why the non-service connected disabilities are not a factor in the veteran being unable to work. There is also a place on the form for the veteran to provide the name and address of the physician or hospital that is treating him or her for the service connected disabilities. It is very important to state the frequency (monthly, weekly, every other week, etc.) rather than specific dates for the medical provider to whom the veteran goes for treatment relating to his or her particular disabilities.

Section II

Section II of the form asks for all employment history for the five-year period preceding the date on which the veteran claims to have become too disabled to work. So, for example, if a veteran stopped working in 2010, work history from 2005-2010 would need to be provided, along with the names and addresses of the employers, what type of work was performed, how many hours per week, and the dates of employment.

Section III

Section III addresses schooling and other training. In this section the veteran is asked whether he or she acquired any other education or training before becoming too disabled to work, or had any education or training since becoming too disabled to work, and specifically what kind of education or training it was. In this, and every section of the form, accurate and specific information supplied by the veteran goes a long way in helping the VA make a timely decision for IU.

It is important to understand that IU is not a freestanding claim, but is part of the rating process. For example, the VA grants a veteran a 70% rating for PTSD, but does not decide the issue of IU. The veteran may think, “Okay, now I have a 70% rating so I can apply for IU,” when it fact what he should do is file a Notice of Disagreement to the decision granting the 70% rating for failure to adjudicate the issue of IU. This is important because of the way the VA determines the effective date for IU.

The effective date for IU is often something that the VA gets wrong. In simplest terms, to determine the effective date for IU you must first figure out the date on which the VA first received evidence from some source which indicates that the veteran was unemployable. This could be a letter from a doctor or a notation in medical records which states that the veteran is unable to work due to his or her service connected disability. Second, you must determine the status of the veteran’s claims, if any, at the time the VA received this evidence.

There are three main ways to answer the second question:

  1. The VA first received evidence of the veteran’s unemployability when he or she filed a claim for service connection or when the VA was considering whether to grant service connection. If the VA eventually grants service connection for the veteran’s disability and awards IU, the effective date would be either:

• the date the VA received the claim for service connection, or

• the date the veteran first became unemployable due to his or her service connected disabilities, whichever is later

2. The VA first received evidence of the veteran’s unemployability after the VA granted service connection, but before the VA made a final decision on the rating for the disability, the effective date for an award of IU would be:

• the date the VA received the claim for service connection, or

• the date the veteran first became unemployable due to his or her service connected disabilities, whichever is later.

       3. And finally, if the VA first received evidence of the veteran’s unemployability when he or she filed a claim for an increased disability rating or while a claim for an increased disability rating is pending, the effective date for an award of IU would be:

• the date the VA received the claim for an increase in disability rating, or

• the date the veteran first became unemployable due to his or her service connected disability ratings, whichever is later.

 

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