Have Questions About Your Entitlement For Individual Unemployability Benefits
If your service-connected disability is preventing you from getting or holding substantial gainful employment, you may be eligible for additional veterans compensation. If the VA denied your claim for IU, the team at Hill & Ponton is here to help. Our attorneys focus on social security disability and veterans disability, helping individuals and families obtain the compensation they need. Contact us today for a case evaluation.
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Eight: Potential Remand Of Tdiu Claim
The Board may decide to send your claim back to the VARO. Generally, a BVA remanded decision will instruct the VARO on how to proceed with your TDIU claim. At this point in the TDIU timeline, the Board may direct the VARO to get more evidence or even schedule an exam.
Woods and Woods VA disability attorney Lori Underwood explains BVA remanded decisions:
Do I Need To File A Claim For Individual Unemployability
Now that you or your spouse have completed your active military duty and returned to the civilian world, you may feel like you have merely exchanged one set of stresses for another, including navigating the VAs application process for any disability benefits to which you might be entitled. You might have heard about TDIU total disability individual unemployability but cant figure out how to file a claim. Lets clarify what TDIU is and how you can be considered for it.
A claim is the request for service-connected benefits, for example, I believe I am suffering from PTSD as a result of my service. A claim may also be a request for an increased rating on a disability, for example, I believe my PTSD has gotten worse. The effective date will be the date you filed the claim and it is kept open for one year or with an appeal.
TDIU, on the other hand, is a theory to obtain a total disability rating for the underlying claim . TDIU is not a claim in and of itself, it is a theory or means of arguing entitlement to a 100% disability rating. As such, the effective date is floating, tracking along with the underlying claim.
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What Is Veterans Administration Individual Unemployability And How Do I File For It
If you cant work because of a military service-connected disability, you may qualify for Individual Unemployability . This means you may be able to get disability compensation or benefits at the same level as a Veteran who has a 100% disability rating.
There are two ways to apply for and receive a 100% military service-connected disability rating from the VA.
The VA web site https://www.va.gov/disability/eligibility/special-claims/unemployability/ explains what IU is, what qualifies you for IU, and what forms and evidence you need to submit to file a claim for IU.
You may be eligible for IU if you meet both of the requirements listed below.
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How Do You Apply For Iu Benefits
There are several ways that veterans can apply for IU. Veterans can apply online through www.ebenefits.va.gov or submit VA Form 21-8940. You can also work with an accredited representative or agent or visit your VA regional office to get help with your application.
The VA has online resources available to help former military service members file claims for veterans benefits, including those for IU.
Once accepted, veterans will begin IU enrollment and start receiving monthly payments.
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Do I Have To Have 70 Percent To Be Eligible For Unemployability
No. Frequently veterans that are unable to work due to their service-connected disabilities are told by VA that they are ineligible for unemployability because their service-connected disabilities are rated less than 70 percent. This is incorrect, regardless of what percentage a veteran is assigned, if the service-connected disabilities prevent a veteran from working, they must be paid total disability individual unemployability.
The confusion arises because of VA officers and veterans service officers misinterpreting VA’s regulations. VA regulations provide that if a veteran has one-service-connected disability, to be eligible for unemployability,it must be rated at least 60-percent or higher. If the veteran has two or more service-connected disabilities, at least one of those disabilities must be rated at 40-percent or higher, and, after factoring in the ratings for the other disabilities, the veterans combined disability rating must be 70-percent or higher. Thus, veterans are told that if they do not meet these requirements, don’t bother applying for unemployability. This is wrong.
That is because VA regulations also provide that “It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.”
Appeal Tdiu Claim Denials From The Va
Unfortunately, too many veterans are denied their Total Disability Individual Unemployability benefits. Each year, tens of thousands of veterans reach out to our Individual Unemployability benefit denial lawyers because the VA system wrongly denied their claims. First, know this, a large number of veterans win their TDIU benefits appeals with the right evidence and the right lawyer helping them through the complicated VA appeal process.
If you were recently denied TDIU benefits, you may have the option to appeal the Veteran Administrations initial decision. Veterans wishing to obtain TDIU benefits must appeal within one year of the date the decision was made. Veterans that have let their TDIU appeal period collapse do have the option to re-apply for VA benefits. That means that you will have to re-submit your initial application and start the process over from the beginning.
Our VA benefits appeals lawyers have helped thousands of veterans obtain the benefits they deserve. Dont be discouraged by a denial of your Total Disability Individual Unemployability benefits. The VA regularly denies legitimate claims and many of those vets win their appeals.
In this video, veterans disability attorney Sarah Woods discusses the steps we take to appeal bad VA decisions:
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Va Requirements For Extra
If you dont qualify for schedular TDIU based on your VA rating, you could still be eligible for TDIU under a catch-all provision: extra-schedular TDIU.
Extra-schedular TDIU is designed to compensate you at the 100 percent level even when you arent rated at the minimum rating requirements
In other words, this type of rating is designed to allow you this rating when the standard VA disability rating schedule doesnt capture the degree to which your disability impacts your ability to function, work, and live a normal life.
Extra-schedular TDIU is harder to qualify for. You must prove that your service-connected disability prevents you from holding a job that supports you above federal poverty levels, even though your rating doesnt meet the minimums above.
Regardless of what type of TDIU youre seeking, the critical piece is that youre unable to maintain substantially gainful employment with earnings above the federal poverty level. Below we cover when and how much you can work and still be eligible for TDIU.
The Role Of Substantially Gainful Unemployment Receiving Tdiu Benefits
To qualify for total disability benefits, a veteran must be unable to maintain substantially gainful employment as a result of their service-connected disabilities. Substantially gainful employment is VAs convoluted term for determining whether the work a veteran can do meets the standards for receiving entitlement to TDIU. This includes not only how much income a person might receive in a year , but also how many hours they might work in a particular week, whether the employer has provided any accommodations, and how long a veteran has held a particular job.
The concept of maintaining employment is important because the ability to receive a job offer, or even to begin working, is different from maintaining that job for a reasonable period. This is why there are a lot of factors that VA looks at in terms of what it means to maintain substantially gainful employment. No matter what, it must only be service-connected disabilities that are considered for TDIU the effect of other disabilities that are not service-connected on maintaining substantially gainful employment is irrelevant.
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What Medical Records Does The Va Usually Look At When Reviewing Your Case
Since the VAs decision is based on your medical records, expect them to review the following items that may apply to you:
- Occupational evaluation from a VA clinical social worker
- Disability examination report from a physician or psychologist
- Report from a vocational specialist or medical doctor that states you cannot work and why
- Termination notices, employment records or statements from past job
Unfortunately, this rule prohibits the VA from considering disabilities that arent service-connected in deciding your case.
The Va C& P Directors Most Common Tdiu Mistake
In 2013, a single judge decision silently slipped out of the Court of Appeals for Veterans Claims.
Now single judge decisions are not binding precedent, so they arent official law, but they are a good sign of the direction the Court might head on a particular issue.
This particular 2013 case the Bennet case the Court addressed the standard that would apply when a disabled veteran sought VA unemployability on an extraschedular basis.
In a nutshell, the Veteran claimed entitlement to TDIU because of the severity of his back pain. If you read the CAVC judges decision in this appeal, you will see that it was pretty bad.
Problem is, even though he argued that his back disability prevents his ability to get and keep substantially gainful employment, the most the VA would give him was a 40% rating for his back and a 10% rating for its secondary impact on his leg.
And then the VA C& P Director and the BVA judge did exactly what they did and very often still do when a disabled veteran claims TDIU on an extraschedular basis:
First they found that there was no objective medical records showing sustained treatment. Thats basically like saying that a baseball player didnt hit a home run because the newspaper didnt report it. Its nonsense, and if the BVA says that in your VA claim, you should contact a lawyer that handles appeals to the CAVC.
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Hiring A Total Disability Individual Unemployability Benefits Lawyer
We highly suggest you contact a veterans benefits lawyer to assist you with obtaining your TDIU VA compensation benefits. The Veterans Administration is a maze of thousands of federal regulations and deadlines that could seriously affect your chances of obtaining TDIU benefits. When you hire Woods & Woods, our team of TDIU VA disability lawyers, doctors, case managers, psychologists, and vocational experts go to work for you. We never charge a penny unless you win your TDIU benefits. If you need TDIU benefits help, our VA disability compensation lawyers are here to help.
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Why Would Someone Want A 100% Rating Versus Unemployability
The biggest difference between unemployability and a 100% disability rating comes down to the work restriction imposed by unemployability. There is a myth that a veteran cannot hold any employment while receiving unemployability, and while that is not the case, there are restrictions on what employment a veteran can hold.
The VA may grant unemployability when a veteran is unable to secure or maintain a substantially gainful occupation due to their service-connected disabilities. The courts have determined that substantially gainful occupation means employment where a veteran earns more than what the current federal poverty level is for an individual. Right now, the current poverty level is around $12,000. This means that an employed veteran who earns $12,000 or less per year can still be eligible for unemployability even though they are employed.
There are no restrictions on a veterans ability to work with a 100% disability rating.
However, with unemployability, the VA can and will revoke unemployability if a veteran becomes employable again.
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Who Can Help Me Receive Va Disability Compensation For Individual Unemployability
Even if the Department of Veterans Affairs has denied you a TDIU rating in the past, you may still have a chance of winning your individual unemployability case. If you need help receiving compensation from the VA for individual unemployability, you should consider contacting an experienced VA disability attorney in your area.
If you do not meet the criteria for a TDIU rating, please keep in mind that you might be able to petition the Department of Veterans Affairs for an extra-schedular rating at 100%. This means that you will be considered as a special case outside of the VAs regular rating system.
The Department of Veterans Affairs looks at your education, work history, and medical records to make a determination. In order to build a strong case, its important that you work together with your VA disability compensation attorney to gather evidence to prove your claim.
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Va Individual Unemployability Lawyer
Individual Unemployability benefits are given to veterans with service-connected disabilities that prevent them from keeping or obtaining substantial gainful employment. In other words, if a veterans disabilities prevent him or her from working or accomplishing minimal work, he or she may be eligible to receive Individual Unemployability benefits. The important aspect of TDIU is that it enables the VA to pay certain veterans disability compensation at the 100% rate even if the veterans disability rating is lower than that.
If a Veteran has at least one service-connected disability rated at least at 60%, or two or more service-connected disabilities with at least one disability rated at 40% or more and with a combined rating of 70% or more, the veteran may qualify. The other requirement is that the veteran must prove they are unable to maintain substantially gainful employment as a result of the service-connected disabilities. If there is evidence to show that the service-connected disability or disabilities create an unusual or restrictive living situation, the requirements can be modified. For example, if the veterans disability requires frequent or ongoing hospitalizations, his or her ability to hold down a job would not be possible.
If you filed a TDIU claim and the VA denied it, contact us for help with the appeals process. We provide free consultations to veterans nationwide.
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Housebound Benefits For Pension Recipients
Housebound benefits will be considered to exist when the veteran is rated with one of the following
- Has a single disability that is rated at a 100% and has additional disability rated at 60%,
- Be totally disabled from a single disability and be permanently housebound.
Permanently housebound occurs when the veteran is substantially confined, as a direct result of his disability, to his house, ward, or clinical area, and it is reasonably certain that the circumstances will continue throughout their lifetime. Congenital, developmental, hereditary, or familial conditions may be considered. Income and asset limits apply, but are at a higher rate than pension.
Myths Associated With Tdiu
Myth 1: In order to receive TDUI, the veteran cannot be employed.
This is not true. The VA may grant TDIU when a veteran is unable to secure or follow a substantially gainful occupation due to their service-connected disabilities. While to most the words substantially gainful occupation may seem like meaningless jargon, the courts have determined that these words specifically mean employment where the Veteran earns more than what the current federal poverty level is for an individual. Right now, the Federal poverty level is about $12,000. This means, an employed Veteran who earns $12,000 or less per year, may be eligible for TDIU despite the fact that they are employed.
Myth 2: If I dont meet the percentage requirements, the VA will not grant TDIU.
While in most cases, the VA does not grant TDIU when a veteran does not have one individual 60 percent rating or a combined 70 percent rating with one individual rating at least 40 percent, the VA is allowed to make exceptions. If the veteran is rated less than 60 percent and still wants TDIU, they still may be able to receive TDIU by applying for something called an extraschedular rating.
If the veteran is rated less than 60 percent and still wants TDIU, they still may be able to receive TDIU by applying for something called an extraschedular rating.
Myth 3:I have Social Security Disability, so the VA will automatically grant TDIU.
Myth 4: Any condition I have, whether service-connected or not, is relevant to TDIU.
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How Do You Determine Whether Your Disabilities Prevent You From Working
To determine the severity of your disabilities and whether you qualify for TDIU, the Department of Veterans Affairs will look at medical records and other evidence. A trained attorney can take you through the process of gathering that information and ensuring all relevant evidence that is likely to support your case is collected and presented. A legal representative can also file an appeal should your application be denied.