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How To File For Va Unemployability

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Who Is Eligible For Total Individual Unemployability Benefits

How to file for Individual Unemployability through the VA

A veteran who has served in the military and received honorable discharge can get individual unemployability benefits. Veteran who received dishonorable discharge will not get this benefit. Veterans can get either scheduler or extra scheduler benefits based on their condition. Mental impairment and physical disability also causes unemployability so veterans with such conditions can also get additional compensation.

Following conditions must be fulfilled to get the TDIU benefits:

  • A veteran must have service connected disability with the rating of 60 percent or combined rating of 70 percent at least.
  • The veteran must not be working with a steady job. The overall pay of the veteran must be less than the poverty threshold. If veteran has substantially gainful job then he cannot receive the TDIU benefits from the state.

Veteran who meets above criteria can get the benefits. TDIU basically provides health care benefits and monthly compensations to the veterans. A veteran must file a claim to get these benefits from the veteran affairs of department.

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Now single judge decisions are not binding precedent, so they arent official law, but they are a good sign of the direction the Court might head on a particular issue.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.

  • He did not show the schedular rating for his disabilities were inadequate to properly rate his disabilities and/or,
  • What Evidence Do You Need For Individual Unemployability

    When applying for individual unemployability, disabled veterans will need to present evidence. This evidence should include:

  • Evidence of one or more service-connected disabilities. These disabilities must meet the VAs schedular requirements.
  • Evidence that the service-connected disability or disabilities prevent the veteran from obtaining or sustaining substantially gainful employment .
  • Its important to note that there are some cases where the VA will grant IU even if the veteran has a lower disability rating than necessary. However, the veteran must present evidence that shows that the typical eligibility criteria is unreasonable in that case. For example, a veteran might show that they have experienced frequent periods of hospitalization that interfered with their ability to stay employed and earn an income.

    Once a veteran is approved for IU, they may need to fill out an employment questionnaire to show that theyre still eligible.

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    Who Is Eligible For Tdiu

    To qualify for TDIU, you must first meet the basic requirements for veterans disability benefits being a veteran of the U.S. military and having one or more service-connected disabilities. In addition, you must:

  • Have at least one service-connected disability that is rated at 60% or higher, or 2 or more service-connected disabilities with at least one rated at 40% or more, with a combined rating of 70% or higher AND
  • Be unable to engage in substantially gainful employment because of your service-connected disability.
  • For purposes of TDIU, substantially gainful employment means a job that pays above the poverty threshold. Marginal employment odd jobs do not count as substantially gainful employment.

    Importantly, if you do not meet the schedular criteria based on the rating schedule, you may still qualify for individual unemployability benefits if you can prove that your VA disability rating does not accurately reflect the limitations of your service-connected condition. For example, if you cannot hold steady employment that pays more than the poverty threshold because you are frequently in and out of the hospital, your New Jersey veterans disability benefits lawyer can argue that you should qualify for TDIU even though your 50 percent disability rating does not meet the criteria.

    Which Veterans Currently Get Va Unemployability Benefits Each Month

     How To Apply For 100 Va Unemployability

    You may wonder which veterans benefit most from the VA unemployability program. According to A 21st Century System for Evaluating Veterans for Disability Benefits, IU is a fast-growing compensation option for vets. According to the VAs annual finance report, in FY2020, 373,205 vets got IU benefits. Veterans from these service eras qualified for VA unemployability benefits from 2000-2006, per the SSA:

  • Vietnam veterans who served from 1964-1975
  • Peacetime veterans who served from 1975-1990
  • Gulf War veterans who served from 1990-present
  • Read Also: How To Apply For Tdiu Va

    What Is Substantially Gainful Employment

    Substantially gainful employment means a veteran is earning above the poverty level, which is defined by the U.S. Department of Commerce, U.S. Census Bureau, as the poverty threshold for one person.

    The 2020 rate indicates that a veteran making less than $13,465 a year is earning below the poverty line.

    If youre currently working, continue readingabout marginal employment in this post below.

    Can The Va Terminate My Tdiu Benefits

    Yes. TDIU benefits are not necessarily permanent. The VA may reduce or terminate individual unemployability benefits if they fail to submit VA Form 21-4140 each year if they are able to maintain substantially gainful employment, and/or if a veterans service-connected disabilities improve, leading to a lower disability rating.

    If you fall into one of these categories and the VA has proposed reducing or terminating your disability benefits, a disability benefits lawyer can help. In New Jersey or Pennsylvania, call Bross & Frankel to schedule a free consultation with a veterans disability benefits attorney today.

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    What Information Is Required

    • All medical records pertaining to the service-connected disabilities that have made you unable to work
    • Hospitalization and outpatient care records in the past year
    • The exact date or period when you became too disabled to work
    • Information on your work history during the last five years you were able to work
    • Any education and/or vocational training you have had.

    You can apply through the VA website, in person at your local VA office, or with a legal representative.

    To make sure your IU application is reviewed promptly and you have the best chance of success, you should provide clear, detailed, and consistent documentation and information. A VA representative is responsible for reviewing your case and approving individual unemployability, so the more clear and exact you can be, the easier it is for them to approve your claim.

    The VA may not process your claim quickly. It can take several months to review your individual unemployability benefits application. However, if your IU claim is approved, you will qualify for retroactive benefits to the date you filed.

    What Are The Benefits Of Individual Unemployability

    Individual Unemployability – When to File

    Individual Unemployability is a unique part of VA’s disability compensation program. It allows VA to pay certain Veterans compensation at the 100 percent rate, even though VA has not rated their service-connected disabilities at that level. Who Is Eligible for Individual Unemployability? You must be a Veteran.

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    Am I Eligible For Individual Unemployability

    VBA lays out the requirements to qualify for Individual Unemployability including the following:

    • You must be a Veteran.
    • You must be unable to hold a job because of service-connected disabilities. This must be substantially gainful employment and not odd jobs.
    • The Veteran Benefits Administration defines substantially gainful employment as full-time employment that provides a wage greater than the poverty level.
  • Your inability to work must be related to service-connected disabilities. The VA will review the evidence and decide whether a Veterans disability is, , severe enough to grant individual unemployability.
  • The Criteria For 100% Disability

    You can qualify for Total Disability based on Individual Unemployability if you meet two criteria:

    • Inability to maintain substantially gainful employment. Substantially gainful means a steady job that would provide regular financial support. Marginal employment and odd jobs do not count for this matter. The final rating decision focuses on this criterion
    • Having at least one service-connected disability rated at 60% or higher, OR at least two service-connected disabilities, at least one of them rated at 40% or higher, with a combined rating of at least 70%.

    This is important: Veterans who cannot support themselves financially may be eligible for a total disability benefit based on individual unemployment even if their service-connected disability or illness, or a sum of several connected disabilities, has a VA disability rating of less than 100 percent.

    In some cases, a Veteran could get Total Disability based on Individual Unemployability benefits even if their combined service-connected disabilities do not reach the minimum threshold of the disability rating. This is possible if the Veteran can prove that, under their specific individual circumstances, their disability or injury directly interferes with their ability to work.

    For example, they may require frequent hospital stays or therapy that would get in the way of steady employment.

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    Why Tdiu Claims Get Denied

    Denyentitlement to TDIU only if the facts demonstrate that the Veteran

    • Is not precluded from securing or following substantially gainful employment by reason of SC disability
    • Is gainfully employed, or
    • Has failed to cooperate with development, such as failing to return a completed VA Form 21-8940 when requested.

    Reference: For more information on continuing a total evaluation based on TDIU, see 38 CFR 3.343.

    The Reality Of Va Individual Unemployability

    Learn How to Apply for Disability Benefits From the Government

    You can be rated at 10% for a single disability, or 90% for multiple disabilities it does not matter. A disabled veteran is still eligible for VA individual unemployability regardless what his disabilities are or are not rated at.

    Why?

    Because the very next VA regulation after the schedular TDIU one I mentioned above covers what is called extra-schedular TDIU. That regulation 38 C.F.R. §4.16 says that you can get VA individual unemployability regardless of what your rating is, so long as you can prove this ONE thing:

    Your service connected disability prevent you from getting and keeping substantially gainful activity.

    Sound familiar? The proof of schedular VA individual unemployability and the proof of extra-schedular VA individual unemployability are EXACTLY the same.

    Theres only one difference between the two ways to prove TDIU entitlement: WHO decides your claim.

    The VA rater in a VA regional office has authority to decide claims for schedular TDIU. Claims for extraschedular TDIU go to a different VA office the Director of Compensation and Benefits.

    That means two things:

  • If you make a claim for extraschedular TDIU unemployable with ANY VA disability rating your VA claim will take a bit longer because it has to be approved by one of the VAs top executives.
  • What is the implication for you, the disabled veteran, trying to get VA TDIU benefits?

    If you do NOT meet the schedular requirements for VA individual unemployability , you have 2 strategies:

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    Securing And Maintaining A Job

    These terms clarify that a veteran is entitled to TDIU if his service-connected disabilities prevent him from getting a job and/or prevent him from keeping a job.

    Some physical disabilities such as back or knee problems might be easily noticed by an interviewer and might prevent a veteran from getting a job. Other disabilities, such as PTSD, might not be evident in an interview but hinder a veterans ability to keep a job as time goes on.

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    What Is Unemployable Vs Unemployed

    Being unemployable and being unemployed are notsynonymous for the purpose of determining entitlement to an TDIU rating under 38 CFR 4.16.

    A Veteran may be unemployed and even have ahistory of unemployment from several jobs, but not be incapable ofsubstantially gainful employment . Unemployment can be dueto economic factors, work performance issues, or other reasons and notnecessarily related to being unable to secure or follow substantially gainfulemployment due to an SC disability.

    A Veteran might also be unemployed from onejob due to an SC disability, but still be capable of securing or followinganother substantially gainful occupation.

    Substantiallygainful employment isdefined as employment at which non-disabled individuals earn their livelihoodwith earnings comparable to the occupation in the community where the Veteranresides. It suggests a living wage.

    Substantiallygainful employment is

    • Competitive employment, and with
    • Earnings exceeding the amount established by the U.S. Department of Commerce, U.S. Census Bureau, as the poverty threshold for one person.

    Reference: For more information on thedefinition of substantially gainful employment, see

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    What Is A Va Form 21

    A substantiallycomplete VA Form 21-8940 is required toestablish entitlement to TDIU because it gathers relevant and indispensableinformation regarding a claimants disabilities and employment and educationalhistories. The form concludes with a series of sworn certificationstatements, and in endorsing it, a Veteran

    • Attests to his/her employment status, and
    • Signals understanding of the TDIU benefits incompatibility with substantially gainful work.

    A properlysigned and executed VAForm 21-8940 enables VA to gather the information necessary todetermine the Veterans entitlement to TDIU and recover TDIU compensation thatis later discovered to have been awarded on fraudulent terms.

    While asubstantially complete VAForm 21-8940 is necessary to provide VA with informationneeded to substantiate entitlement to TDIU, it is not necessaryto raise the issue of TDIU. VA must decide on TDIU whenthe issue is

    • Explicitly raised by the Veteran, or
    • Reasonably raised by the evidence of record.

    If TDIU israised and the Veteran fails to complete and return VAForm 21-8940, VA must make a decision on the issue of TDIU in arating decision based on the available evidence of record and may denyentitlement as described in M21-1, Part IV, Subpart ii, 2.F.4.n.

    Important:

    Reference: For more informationon criteria for substantially complete applications, see M21-1,Part I, 1.B.1.b.

    What Is Veterans Administration Individual Unemployability And How Do I File For It

    TDIU: How to know if you’re eligible & how to file a claim

    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 first way is to apply for 100% service-connected disability based on one or more service-connected disabilities, which were caused by wounds, injuries, illnesses, or hazardous material contaminations. The specific instructions for filing a claim for service-connected disability are found at https://www.va.gov/disability/how-to-file-claim/ .
  • The second way to apply for 100% service-connected disability is to submit a VETERANS APPLICATION FOR INCREASED COMPENSATION BASED ON UNEMPLOYABILITY, using VA Form 21-8940 and VA Form 21-4192. This application is based on you having a service-connected disability that keeps you from working, regardless of your VA service-connected disability rating.
  • 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.

    EDITORS NOTE

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    What You Need To Know Before Filing A Tdiu Claim

    Receiving the compensation you are due for a service-related disability can be a complicated and often frustrating process, particularly if you need to file a TDIU claim. If you are a U.S. Military veteran with a service-related disability and should be eligible for TDIU, we may be able to help you navigate the process.

    Need Medical Evidence To Prove Your Tdiu Claim

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    How Do I Obtain A Permanent And Total Disability Rating

    The first thing you must do to obtain a permanent and total disability rating is to prove that your condition is service-connected.

    There is no VA benefits application for permanent and total disability. But if you believe that your total disability is unlikely to improve, and you have supporting evidence for this, you can write a letter to the VA requesting them to find you permanently and totally disabled. You should include medical evidence in your letter to support the request, including but not limited to medical reports, doctors notes, and treatment records.

    The VA may determine at the time you apply for benefits that you are permanent and totally disabled. Be prepared to support this claim in the event they dont so designate you first.

    What Can Disability Law Group Do for Me?

    We want veterans to get the compensation they need and deserve for the service theyve provided our country. Our team has worked with countless veterans to explain how TDIU and permanent and total disability benefits can support them. We will review your case and advise you of your legal options. If your application was wrongfully denied, well step in and appeal the decision.

    Trust Disability Law Group to help with your VA benefits application.

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