Wednesday, June 15, 2022

What Is Va Individual Unemployability

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Our Tdiu Lawyer Will Fight For Your Iu 100% Disability Rating By The Va

Common TDIU VA Claim Errors: Individual Unemployability

The veterans disability lawyers of George Sink, P.A. Injury Lawyers, can discuss requesting a total disability rating based in individual unemployability from the VA with you and help you compile the necessary evidence for such as disability rating. If it is at all possible for you to obtain this 100% disabilitybenefit, we want you to have it.

George Sink, P.A.veterans disability lawyers havehelped thousandsof disabled individuals receive the full benefit the U.S. government promised them. We can provide you with a free, no-obligation assessment of your qualifications for IU benefits, and will fight for you if there is a way forward.

Attorney George Sink Sr. isa disabled Vietnam veteran who has been fighting for vets and other injured and disabled individuals since 1977. Our primary objective is to get ALL disability benefits available to our clients into their hands as soon as possible.

The VA is a large, overworked bureaucracy burdened by complex rules and regulations. Dont fight it alone. the experienced legal team at George Sink, P.A. Injury Lawyers today.

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Now single judge decisions are not binding precedent, so they arent official law, but they are a good sign of the direction the Court might head on a particular issue.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

    A decision concerning entitlement to an TDIU evaluation in accordance with 38 CFR 3.340, 38 CFR 3.341, and 38 CFR 4.16 is based on a review of all available evidence, which should be sufficient to evaluate the,

    • Current severity of the SC disability that the Veteran states and/or the evidence indicates prevent substantially gainful employment
    • The impact of SC disability upon employability, and
    • Employment status.

    The ratingactivity must review all evidence and assign corresponding weight as directedat M21-1,Part III, Subpart iv, 5.A, including but not limited to evidenceconcerning the Veterans

    • Current employment status

    Forward a VAForm 21-8940, Veterans Application for Increased Compensation based onUnemployability, to the Veteran if a request for TDIU is

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

    Important:

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    What Va Disabilities Are Considered Permanent

    Total Disability based on Individual Unemployability Infographic

    The Department of Veterans Affairs considers a disability to be permanent when the medical evidence shows that it is reasonably certain the severity of the veterans condition will continue for the rest of the veterans life. In determining this, the VA is allowed to take into account the veterans age.

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    Va Individual Unemployability And Working

    The VA will continue to provide TDIU benefits as long as the work a veteran does is not considered to be substantially gainful. To the VA, substantially gainful indicates employment for which a veteran earns an income above the federal poverty threshold. In 2021, the poverty line for an individual sits at $12,880 a year, and any annual income below this is considered by the VA to be . Those who are marginally employed can still receive TDIU benefits while working.

    What Benefits Are Available With Tdiu

    If youre a veteran who returned from military duty with a service-connected disability, you may have applied for benefits from the U.S. Department of Veterans Affairs . Your compensation was determined by the VAs rating schedule, and if you met the listed requirements for that illness, you received a rating of between 10100 percent.

    However, some veterans suffer disabilities so severe, they’re unable to work. These can include:

    • Mental conditions such as depression or PTSD
    • Physical conditions such as diabetes, traumatic brain injuries, back problems, and heart disease
    • Conditions considered secondary to your service-connected medical problem

    If a veteran has 100 percent and cant sustain gainful employment, he or she may be eligible for a special type of disability known as Total Disability Individual Unemployability or IU.

    If you think youre eligible for TDIU benefits, you need hire an experienced VA disability attorney to help with your claim. Initially, most TDIU claims are denied by the VA and must often go through the appeals process before being approved.

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    Sheltered Employment & Tdiu Benefits

    Another way that Veterans can earn an income while receiving TDIU Benefits and without breaking the VA unemployability income limits is by participating in what is called sheltered employment.

    There are many ways that your income can be considered sheltered, but 2 that are clearly identified in the regulation itself:

    1) Family business

    2) Sheltered Workshop

    Now, just because you are working for a family business doesnt mean your job is considered sheltered employment. It has to be what the regulation refers to as a protected environment.

    N.B. Veterans case law is not 100% clear on what constitutes a protected environment or sheltered employment or marginal employment for TDIU purposes. I strongly encourage that you get legal advice from an accredited VA attorney if you believe that your work is sheltered/marginal/protected so that you do not lose your TDIU benefit because you exceed the VA unemployability income limits.

    A protected environment occurs when the employer makes special accommodations to employ and provide an income for a family member or a disabled worker. This happens quite a lot a family business, to reduce its tax burden or simply to help another family member, pays a disabled Veteran family member an income that they would not otherwise be able to receive.

    How can you tell if there is a protected work environment so that you ensure your income does not get flagged as exceeding the VA unemployability income limits?

    What do I mean here?

    How Do I Obtain A Permanent And Total Disability Rating

    3 Ways to Get an Individual Unemployability (TDIU) VA 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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    What Are Total Disability Individual Unemployability Benefits

    Total Disability Individual Unemployability benefits are for veterans that cannot keep or obtain gainful employment. You must not be able to work because of mental and physical impairments. Those disabilities must be related to your time in the service and be considered service-connected to receive benefits.

    Secondary service-connected benefits do count towards your Total Disability Individual Unemployability benefits claim. For example, if a veteran was exposed to Agent Orange and developed diabetes, all conditions from diabetes are also considered service-connected. TDIU benefits pay the same as a 100% VA Disability rating. Veterans who are eligible for TDIU benefits might receive more than $3,332.06 a month. There is extra compensation for veterans who have dependent children and parents.

    Four things you should know about Total Disability Individual Unemployability benefits:

    Individual Unemployability: Understanding The Basics

    News Sections: Benefits

    As a VA claims processor, Veterans often ask me about Individual Unemployability , also called Total Disability based on Individual Unemployability . The following is a more formal version of what I tell them.

    What is IU?

    Individual Unemployability allows VA to pay certain Veterans at the 100-percent disability rate even though their service-connected disabilities are not rated as 100-percent disabling. Veterans may be eligible for this rating increase if they are either unemployed or unable to maintain substantially gainful employment as a result of their service-connected disability .

    What is substantially gainful employment?

    Substantially gainful employment is simply full-time employment that provides a wage greater than the poverty level. For instance, if a Veteran has been trained to drive a truck, but cant work because of service-connected back and stomach conditions, he or she may qualify for IU.

    Are there any other eligibility requirements?

    In order to qualify for IU, you must have one of the following:

    1) a 60-percent or more disability evaluation based on a single service-connected disability or,

    2) a 70-percent combined disability evaluation based on multiple service-connected disabilities, with at least one disability rated at 40 percent or more.

    Since the Veteran has only two service-connected disabilities, both the Veterans PTSD and IBS have to be evaluated at a higher combined rate and be the reason he cant work to receive IU.

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    Tdiu Attorney: Eligibility Requirments For Va Benefits

    Evidence that must be part of a veterans disability benefits claim to obtain IU / TDIU benefits includes:

    • Medical evidence allowing evaluation of the veterans current physical and mental condition, e.g., results of VA examinations, hospital reports, and/or outpatient records. As in other claims, the VA may schedule a medical examination if the veterans medical evidence is incomplete or inconsistent.
    • Employment and work history for five years prior to the date on which the veteran became too disabled to work, as well as for any work performed after this date.
    • Forms completed by each employer for whom the veteran worked during the 12-month period prior to the date the veteran last worked.
    • Social Security Administration reports if the vet receives Social Security Disability benefits, if the veterans other evidence is insufficient to award 1 compensation
    • Records from the VAs Vocational Rehabilitation and Employment Service if evidence suggests rehab was undertaken but unsuccessful or was found to be medically unfeasible.

    If the IU benefit is granted, the vet must complete a VA employment questionnaire each year until the age of 69 to affirm that he or she remains incapable of maintaining substantially gainful employment.

    As in other cases, VA claims examiners may request additional information at any time to supplement or clarify evidence in a veterans claim. This, of course, slows the process.

    The Reality Of Va Individual Unemployability

    VA Individual Unemployability Fact Sheet (FREE Download)

    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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    The Myth About Va Individual Unemployability

    Most folks tell you that you have to have a single disability rated at 60%, or multiple disabilities with a total rating of 70% to qualify for VA individual unemployability.

    They are not incorrect.

    This form of VA individual unemployability is known as Schedular TDIU and it is covered by VA regulation 38 C.F.R. §4.16.

    I call this the 60-70-40 Rule.

    But there are two problems with this common perception. First, there are all sorts of rules about what constitutes a single disability rated at 60%. Can they be multiple disabilities from the same service-connected event? If so, do you add the ratings or combine them? What about disabilities affecting the same body function or paired body parts can that be a single disability? We will answer those questions elsewhere for now, I am trying to make a different point.

    Here it is, in a nutshell.

    Tdiu Benefits Are Equivalent To A 100% Disability Rating

    Individuals who qualify for TDIU receive the same benefits as those who are rated 100% on the VAs disability ratings scale. However, TDIU is not the same as a 100% disability rating. The latter takes into account only the severity of the applicants physical and mental impairments, while the former also considers the applicants ability to work.

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    Individual Unemployability Claims Lawyer

    When a service-connected disability prevents a veteran from working, the VA is authorized to pay the veteran at the 100 percent rate, even if the veterans service-connected disability is rated less than 100 percent. This is called a total disability rating based on individual unemployability . If you have a service-connected disability that prevents you from working, then you may be entitled to a TDIU rating.

    Income Limits For Va Unemployability

    VA Individual Unemployability (TDIU) and Working

    The VA individual unemployability income limits are quite low. There are three ways your income can be below the limits set by the VA:

  • You are not working and are unable to work at all.
  • You work but your income is below the poverty level.
  • You work but in a sheltered position that provides accommodations for your service-connected disability.
  • If your income is below the limits set by the VA in any of the above scenarios, then you may qualify for compensation.

    For a free legal consultation, call

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    Veterans Must File A Separate Claim For Va Tdiu Benefits: Myth

    As a general rule, VA is required to assume that a veteran is seeking the highest possible rating for their service-connected condition, to include entitlement to individual unemployability. This means if a veteran is seeking an increased rating for a service-connected condition, and there is evidence suggesting that they cannot work due to that condition, VA is supposed to consider entitlement to TDIU as a reasonably raised issue. That being said, it is better to assist VA in this process by submitting VA Form 21-8940, the formal application for TDIU. This form provides a lot of information that might not be included in the veterans claims file.

    What If My Va Individual Unemployability Benefits Claim Has Been Denied

    If your claim for Total Disability based on Individual Unemployability has been denied, you can appeal VAs decision. Keep in mind that veterans have one year to appeal a denied claim before the decision becomes final. If you choose to appeal, it may be helpful to seek assistance from an experienced VA individual unemployability attorney or accredited representative.

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