Archive for February, 2017


Total Disability Due to Individual Unemployability

Monday, February 20th, 2017

Dan Krasnegor discusses VA disability ratings due to unemploya…

Dan Krasnegor, Lead Attorney for the #Veterans Benefit Group, answers your questions about total disability ratings due to unemployability.

Posted by Veterans Benefit Group of Goodman Allen Donnelly on Thursday, December 15, 2016

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A total disability rating due to unemployability is a type of compensation benefit that a veteran can get from the VA if he/she is unable to work due to their service-connected conditions. Often called “TDIU” or “unemployability”, this benefit is available to veterans who are already service-connected for one or more conditions. When those conditions prevent the veteran from being gainfully employed, the veteran can get a 100% disability rating. Currently, a 100% rating is a little over $3,000 a month for a single veteran, and a little bit more for a veteran with dependents.

How to Qualify for TDIU

There are two basic ways a veteran can qualify for TDIU, and both require evidence that the veteran’s service-connected conditions prevent him/her from gainful employment. The first way to quality for TDIU is to meet the scheduler criteria, which is when a veteran has either (1) a single service-connected disability rated 60% or more disabling, or (2) two or more service-connected conditions (of which one is rated at least 40% disabling) with a combined rating of 70% or more. The veteran must be able to show that those conditions by themselves would prevent gainful employment.

If a veteran does not meet the scheduler criteria (i.e., the service-connected disabilities are not rated high enough), that doesn’t mean that he or she doesn’t qualify for TDIU. The second way to qualify for TDIU is on an extra scheduler basis. In order to qualify for an extra scheduler basis, the veteran must supply evidence that shows that, according to a doctor or other sources, he or she is unable to be gainfully employed due to the service connected disability.

VA Unemployability Benefits and Social Security Disability

While a veteran may qualify for both VA unemployability benefits and social security disability, the benefits are distinct from each other. Here are answers to common questions regarding unemployability benefits and social security disability:

Why am I not getting unemployability benefits from the VA when I’m already getting Social Security disability?
Social Security rules for unemployability benefits are not the same as the VA’s. Generally, Social Security benefits are going to be rewarded no matter what condition is causing your inability to work. To qualify for unemployability (TDIU) from the VA, the condition that prevents the veteran from gainful employment must be related to his/her military service.

If I have already been awarded Social Security disability, how do I also get VA unemployability benefits?
First, the VA is going to ask you for an application called VA form 21-8940. This form can be found here, or through a service organization representative. The form asks for information about what sort of work you did in the past, when you last worked and what conditions you think prevent you from working. If you have any documentation, especially from a doctor, that explains why your service-connected disability prevents you from working, be sure to include it with your form.

What if I have both a service connected disability and a non-service connected disability that prevent me from working?
You will need to make it clear that the service-connected disability is severe enough by itself to prevent you from working and that it’s not the non-service connected problems that are preventing you from being able to work.

How does my previous employment affect disability benefits?
The VA will look at what kind of work you used to do, and why you stopped doing it. Use VA form 21-8940 to provide information about your previous employment. If possible, also provide statements from your prior employer that indicate why you stopped working. If you stopped working for a reason other than your service-connected disability, explain why you still think you are unable to work due to disabilities that are related to your service. For example, if you retired at age 65 and now you think that you still are not be able to work due to your service connected disabilities, you will need to be clear that, while you retired from your last job, the reason you can’t work now is because of your service disabilities. Always be honest with the VA, because they will talk to your final employer and the truth will come out.

If you have already made a claim and believe you have been wrongfully denied or simply need help walking through the claims process, the Veterans Benefit Group of Goodman Allen Donnelly can assist you in getting the benefits you deserve. We specialize in getting veterans their compensation, pension, TDIU and other benefits they earned with their service. If you would like our help, contact us today.


Key Terms

Unemployable When a veteran is unable to participate in gainful employment.
Gainful employment Generally, a job that pays higher than the poverty level.
Total disability due to individual unemployability (TDIU) A type of compensation that a veteran could obtain if he/she is unable to work due to their service-connected conditions.
Scheduler TDIU When there is evidence that a veteran’s service connected conditions render him/her unemployable, AND the veteran has one of the following disability ratings: (1) a single, service-connected disability that is rated as 60% or more disabling; or (2) two-more more service-connected conditions (one of which is rated at least 40% disabling) with a total, combined rating of 70% or greater.
Extra Scheduler TDIU When a veteran does not have the disability ratings listed above, but the veteran’s service-connected conditions render him/her unemployable.

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Can a veteran obtain more than one personal hearing at the Board of Veterans’ Appeals?

Wednesday, February 1st, 2017

On January 31, 2017, the United States Court of Appeals for Veterans Claims issued a decision in Cook v. Snyder which essentially held that 38 U.S.C. § 7107(b) allows a claimant who had a personal hearing before the Board of Veterans’ Appeals (Board) at one stage of appellate proceedings to receive another hearing before the Board during a subsequent stage of appellate proceedings, following a remand from the Court. The Court provides an historical background of Board hearings and the role they play in Board adjudications. The Court addressed, in detail, the statutory interpretation of section 7107(b) and determined that both the Secretary and the Appellant advanced grammatically plausible readings of the statute where the Secretary argued that only one hearing before the Board was allowed while the Appellant argued that more than one hearing was permitted. The Court determined that the statute’s language is not clear on this point. Therefore, the Court looked to whether VA’s implementing regulation, i.e., 38 C.F.R. § 20.700(a), interpreted the statute, and it found that the regulation did resolve the ambiguity in the statute. Because the VA regulation did not provide the necessary guidance, the Court looked to the Secretary’s interpretation to the extent that it has the “power to persuade” it of its propriety. However, the Court, understanding the VA’s nonadversarial claims system and the understanding that a claim changes and evolves at different stages of an appeal, held that an Appellant should be given the opportunity for a new personal hearing following a remand from the Court.

Here’s a link to the Court decision.

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