Veterans with service-connected disabilities are often unable to work. Most of these veterans also lack a 100 percent schedule rating. The Department of Veterans Affairs (VA) expects these veterans to live on disability checks of less than 100 percent without any means to supplement their income. Why does the VA deny total disability individual unemployability (TDIU) claims?
The VA makes three frequent mistakes in adjudicating TDIU claims: requiring veterans to prove 100 percent unemployability from all forms of work, considering age or non-service connected conditions and failing to examine the veteran’s educational and occupational history. Read on to learn more and find out how YOU can win a TDIU appeal.
3 Reasons the VA Denies TDIU Claims
#1. The VA mistakenly requires veterans to prove 100 percent unemployability from all forms of employment.
VA regulations do not require veterans to be totally unemployable from all forms of employment for TDIU claim approval. The regulations merely require that a veteran be disabled from “substantially gainful” occupation. As long as the income falls below the poverty threshold, veterans who are earning income are still able to win TDIU claims.
The Federal Circuit case, Roberson v. Principi, noted that requiring a veteran to prove he cannot maintain substantially gainful employment of any sort is error on the part of the VA. According to the Court, the word “substantially” suggests there is some flexibility, and total and complete unemployability is not necessarily the required standard.
Being disabled from substantially gainful employment does not mean you cannot work at all. It means that the amount or type of work you can do is limited and infrequent enough to result in wages less than the annual poverty threshold level (set at $12,331 in 2015).
#2. The VA mistakenly considers age and/or non-service connected conditions when determining employability.
The VA is prohibited from considering the veteran’s age (I have had a TDIU claim for a gentleman in his 90’s) or non-service connected disabilities. The VA may not come right out and say they believe non-service connected factors are causing the inability to work, but if there is a significant non-service connected issue, it will invariably taint the VA adjudicators’ objectivity.
For example, consider a veteran with both a back disability and post-traumatic stress disorder (PTSD). The back disability is not service connected, but the PTSD is. The veteran’s work history involves physical labor. The VA would typically deny this veteran’s TDIU claim. Why? They would say the real reason he is not able to work is that his back disability prevents him from doing physical labor.
Now say that the veteran’s physical labor job requires close contact with co-workers and supervisors. This is a key piece of information. The veteran could now ignore the back problem and base his entire argument on whether or not the PTSD, standing alone, would prevent him from dealing with coworkers and supervisors to the extent that he could no longer work.
Don’t allow the VA to get away with denying a claim based on age or non-service connected disabilities. Make an effort to construct a scenario that only involves the service-connected disability. The VA must then determine whether that disability, standing alone, would prevent you from engaging in gainful employment.
#3. The VA fails to consider the veteran’s educational and occupational history.
Frequently, the individuals determining your employability are medical evaluators who lack any training as vocational experts. They base their employability assessments solely on medical standards without any regard for the veteran’s educational and vocational background. How can they make an individualized determination as to employability without even asking about the veteran’s educational and vocational background?
The short answer? They can’t.
TDIU is a very individual analysis that must consider an individual’s background. In the case of Gleicher v. Derwinski, the Court explains that when a veteran “submits a claim for a TDIU rating, the BVA may not reject that claim without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.” The mere fact that a veteran is under 65, recently employed or highly educated is not decisive. Standing alone, these facts are insufficient to deny a TDIU claim.
While a veteran may be physically able to perform certain employment, his educational and vocational qualifications might not allow him to do the work. The problem? VA examiners are not trained vocational experts. Our veterans’ disability benefits law firm represents disabled veterans worldwide and routinely uses vocational experts in TDIU cases. We advise obtaining an opinion from a vocational expert who can refute what the VA doctor says. These experts are trained in assessing work history and qualifications and how they relate to the ability to do certain jobs.
In TDIU appeals, our veterans’ disability benefits law firm challenges the VA examiners, showing that their lack of investigation into the veteran’s educational or vocational background prevents them from truly establishing TDIU. I object to any VA medical opinion that denies TDIU on the grounds that it did not consider the veteran’s educational or vocational background.
If you are a veteran who has been denied a claim for TDIU, don’t just walk away. You may have a strong argument to win a TDIU appeal. Pick up the phone and call an experienced veteran’s disability attorney.
Our experienced veterans’ disability benefits team will assess the VA’s reasoning behind your denial. We will examine any earnings, service and non-service connected disabilities, and the extent to which the VA considered your education and vocational background. Call now to learn your rights and chances for a successful TDIU appeal. (888) 878-9350