HOW TO WIN CLAIMS FOR:
Total Disability Based on
Individual Unemployability (TDIU)
NVLSP 2011
INTRODUCTION
Schedular ratings
Average impairment of occupational earning
capacity
100% schedular rating = totally disabled
NVLSP 2011
INTRODUCTION
TDIU ratings
Doesnt require total disability (100% schedular
rating)
Contemplate individual circumstances
Effect of vets service-connected disabilities on vets
ability to work
Does not matter whether average person would be
rendered unemployable
NVLSP 2011
INTRODUCTION
38 C.F.R. 4.16
Subsection (a)
Two-step analysis
Rating requirements
Inability to maintain substantially gainful occupation
Subsection (b)
Available where vet doesnt meet rating requirements
under (a)
VA Central Office Consideration of extraschedular TDIU
rating
NVLSP 2011
TWO-STEP ANALYSIS
UNDER 38 C.F.R. 4.16(a)
STEP ONE
Whether vet meets rating requirements?
STEP TWO
Whether service-connected disabilities prevent
substantially gainful occupation?
NVLSP 2011
STEP 1 RATING
REQUIREMENTS
Vet has only ONE service-connected disability
Must have schedular rating of 60%
Vet has MORE THAN ONE service-connected
disability
Combined schedular rating of 70%
One disability must be rated 40%
NVLSP 2011
STEP 1 RATING
REQUIREMENTS
When multiple disabilities are considered one
disability rated 40%
One or both upper or lower extremities (including
bilateral factor)
Common etiology or single accident
Single body system (orthopedic, digestive, neuro,
etc.)
Incurred in action
POW
NVLSP 2011
STEP 2 - SUBSTANTIALLY
GAINFUL OCCUPATION
Must show that vets service-connected
disabilities prevent substantially gainful
occupation
NVLSP 2011
STEP 2 - SUBSTANTIALLY
GAINFUL OCCUPATION
DEFINITION (cont.)
VA Adjudication Procedures Manual (M21-1MR)
definition
that which is ordinarily followed by the nondisabled to
earn their livelihood with earnings common to the
particular occupation in the community where the veteran
resides.
NVLSP 2011
STEP 2 - SUBSTANTIALLY
GAINFUL OCCUPATION
DEFINITION (cont.)
CAVC definition
Faust v. West
[an occupation] that provides [the veteran with an[
annual income that exceeds to poverty threshold for one
person, irrespective of the number of hours or days that
the veteran actually works . . . .
Not the same as 100% unemployable
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STEP 2 - SUBSTANTIALLY
GAINFUL OCCUPATION
DEFINITION (cont.)
Not marginal employment
Income does not exceed poverty
threshold
Protected environments
Marginal employment might prove ability to obtain
substantially gainful occupation
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STEP 2 - SUBSTANTIALLY
GAINFUL OCCUPATION
Medical evidence is required
Medical examination/opinion
Describing impact of service-connected disabilities
on exertional/non-exertional activities
Back disorder example
Schizophrenia example
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TDIU UNDER 38 C.F.R. 4.16(b)
Available when vet doesnt meet rating
requirements
Must still show inability to maintain substantially
gainful occupation
RO must refer to VA Central Office in DC
Director of Compensation and Pension Service
decides whether to grant extraschedular
TDIU
NVLSP 2011
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TDIU UNDER 38 C.F.R. 4.16(b)
C&P Director hardly ever grants TDIU under
subsection (b)
Advocates should still request the RO to refer
appropriate cases
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AGE & NON-SERVICE
CONNECTED DISABILITIES
VA prohibited from considering age and nonservice connected disabilities
Must provide explanation for finding that
unemployability is due to non-service connected
disabilities
Cannot deny because unemployability due to
combined effects of non-service connected
and service-connected disabilities
NVLSP 2011
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AGE & NON-SERVICE
CONNECTED DISABILITIES
If extent of effect of service-connected as
opposed to non-service connected disabilities is
unclear, VA must obtain a medical opinion
If medical evidence shows that effects of
service-connected disabilities can not be
distinguished from effects of non-service
connected disabilities, benefit of the doubt
requires unemployability be fully attributed to
service-connected disabilities
NVLSP 2011
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EDUCATIONAL AND
OCCUPATIONAL HISTORY
VA must consider particular vets
particular educational and occupational
history
Vocational expert opinions are helpful
Vets who have gone through vocational
rehab should already have an opinion
VA cant deny just because vet is young,
highly educated, recently employed, or had
a long career
NVLSP 2011
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OTHER FACTORS THAT VA
WILL NOT CONSIDER
Lack of training
State of the economy
Loss of job because of technological advances
Loss of job because of employer relocation
NVLSP 2011
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SPECIAL ISSUES
STATIC CONDITIONS
Vet has severe disability but continued to work
throughout the years
Vet retires and now claims TDIU
Two theories:
Disability has become more severe
Vet has developed a secondary condition
VA should make an assessment of the side effects of any
medications prescribed for service-connected disability
NVLSP 2011
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SPECIAL ISSUES
SOCIAL SECURITY BENEFITS
Vet can receive both social security and VA benefits
concurrently
Once VA has notice that vet gets social security, it
must obtain social security records
Except where its clear from the record that vet gets social
security based on non-service connected disabilities
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APPLYING FOR TDIU
Entitlement to TDIU not a separate
claim
Part
of determination of appropriate rating
VA must consider whenever there is evidence
of unemployability, including vets lay
statements
VA may consider TDIU w/o VA Form 21-8940
filed. Safer to submit one!
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TDIU
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