Veterans with service-connected disabilities are often unable to work. Most of these veterans also lack a 100 percent scheduler 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. You can also find out more by reading our Essential Guide on TDIU.
Below you will find a discussion of the three primary reasons why the VA denies TDIU claims. What follows the discussion of those three reasons is a more detailed analysis of the factors that influence whether you have a strong claim for TDIU or not.
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 an 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 ($13,788 in 2021).
#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 90s) 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 co-workers 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 denying TDIU because 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.
Understanding the VA's process when analyzing TDIU claims
To reiterate, when assessing a TDIU claim, the VA will grant that benefit “when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” Generally, the VA approaches TDIU cases with a two-step analysis. Except for extra schedular rating situations, the first step involves determining whether the veteran has the right rating percentage. Again, a veteran must have a combined rating of at least 70%, with at least one disability rated at 40% by itself. Or, the veteran must be rated at 60% for one disability.
In addition, to achieve a combined rating of 40% or a combined rating of 60%, the VA's rules allow a veteran to combine certain disabilities as if they are one. For instance, disabilities that affect both upper and lower extremities, disabilities that come from a common event or accident, disabilities affecting a single body system, such as the orthopedic body system, or the neurological system, multiple injuries incurred due to being a prisoner of war, or multiple disabilities because of combat action. For instance, let's assume a veteran has a combined rating of 70%, which consists of a 30% rating for PTSD and then multiple 10 and 20% ratings for various orthopedic disabilities affecting his feet, ankles, knees, low back, shoulders, and elbows.
All those smaller disability ratings involve the same body part or system, the orthopedic body system. Those disabilities could be added together to meet the 40% requirement along with the combined rating of 70%. Alternatively, if those orthopedic disabilities combine together to equal 60%, then the veteran would meet the percentage requirements for TDIU.
The next step in the analysis, assuming they meet the percentage requirements, is to determine whether the veteran is unable to secure or follow a substantially gainful occupation because of the service-connected disabilities.
This is an important point. Veterans often ask: If I have a combined rating of 70% is TDIU automatic? The short answer is no. There seems to be some folklore in the veterans’ community that suggests that VA will automatically grant TDIU if you achieve a combined rating of 70% while being unable to work. It is true that it's best to achieve that threshold requirement of meeting the percentage requirements as set forth in the regulation, but this myth centers around the concept that the veteran must only satisfy one step in achieving a TDIU rating.
This misconception fails to consider the second step in the analysis. Once a veteran meets the percentage requirements, he must show that his service-connected disabilities prevent him from securing or following a substantially gainful occupation.
I had a client who had a 70% combined rating. Of that 70%, he had one disability rated at 60% by itself. His disabilities consisted of a lung disability and a hearing loss disability. He was also suffering from severe PTSD that caused him to lose all the jobs he ever obtained, and most of the evidence in the file indicated that his inability to work was due to his PTSD. His PTSD was not yet service connected. He is appealing the denial of the PTSD. He wanted to file a new claim for TDIU and felt that the VA would automatically grant it, given his combined rating and his inability to work.
However, there was no evidence in the file that his service-connected pulmonary problem and hearing loss were the reasons for his inability to work. In fact, all the evidence pointed to the non-service-connected PTSD as being the reason for his inability to work. I advised him that filing a claim for TDIU before the service connection was in place for PTSD would result in a most certain denial. We then discussed about whether TDIU is automatic when a veteran achieves a 70% rating. I explained to him the information in this article.
Other Factors in the TDUI Analysis
Does age affect your ability to obtain TDIU? The short answer is no. VA regulations do not allow the consideration of age when assessing entitlement to TDIU. Specifically, The VA regulations do not allow for the consideration of age or non-service connected disabilities. Now we all know that age and non-service-connected health problems could affect a veteran's ability to work.
However, the VA must perform a hypothetical analysis and ignore any limitations caused by age or non-service connected medical conditions. This means that the VA may only consider the effect that the service-connected conditions have on the veteran’s ability to work. In fact, we have won TDIU for veterans in their 90s.
In addition, it is important to remember that the VA cannot decide to deny TDIU by merely saying that the inability to work is due to the non-service-connected conditions. It can also not say that the inability to work is due to the combination of service and non-service-related disabilities. It is important to remember that the non-service-connected disabilities could be completely disabling standing alone, but the VA must separate those out of the analysis and determine whether only the service-connected disabilities, standing alone, would result in the inability to sustain a gainful occupation.
Vocational and Educational Background
Two U.S. Court of Appeals cases are instructive on this point. They are Cathell v. Brown, 8 Vet. App. 539 (1995) and Beaty v. Brown, 6 Vet. App. 532 (1994).
In Cathell, the Court stated that the VA may not “merely allude to educational and occupational history [but must attempt] … to relate these factors to the disabilities of [the veteran].
In Beaty, the Court stated 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 best example of how this issue comes up is when a veteran only has a high school education and a long history of physical labor as his primary work history. If he has no white collar, or sedentary work skills, it would be improper for the VA to deny the TDIU on the grounds that the veteran could do sedentary work. The idea that the veteran could do sedentary work would be mere conjecture. And in the absence of any evidence that the veteran was qualified to do sedentary work by virtue of his background, education, and work history, such a reason by the VA would be invalid. If you receive a decision from the VA that sounds like this, then you should retain an attorney and consider appealing the decision.
One of the other issues that we see is that even if a veteran had some college education or some specified training, if many decades have elapsed since he underwent that training, his knowledge and information are likely outdated. For example, we once had a case involving a veteran with prior training involving some skills in a laboratory. However, at the time he did his training in that field, technology was nowhere near what was currently being used in similar laboratories today. He learned completely outdated information that is obsolete. Such work history really has no value. So do not let VA deny you TDIU merely because you had a technical training many decades prior that is now obsolete.
If you have little advanced education and training, and a mostly physical or manual labor work history, the more physical disabilities will play a role in helping you get TDIU.
On the other hand, if your work history is mostly white collar, sedentary, or brainwork, it will be harder to obtain TDIU with just physical service-connected disabilities alone. Typically, if you have a sedentary work history, and only physical disabilities, we will need to establish that the severe pain prevents you from sitting for long periods of time or that the severe pain impairs your concentration. Often, when we are confronted with a situation with a sedentary work history with a highly educated veteran, we typically need to have them file a claim for depression or anxiety secondary to their chronic physical pain so that we can bring in a mental component to the claim as a way of negating the veteran’s skills and education in brain work/sedentary work.
It is important when applying for TDIU that you present evidence that explains how your service-connected disability impacts your education and vocational history. The evidence could be in the form of lay evidence such as statements from friends and family, a former employer, a coworker, as well as statements from your doctors.
We believe the best evidence in a case for TDIU is an expert vocational opinion from a qualified vocational expert. You can read more about a vocational expert’s perspective on winning a TDIU claim here.
Social Security Records
In addition, if you are receiving Social Security disability, and the reason for the favorable determination from Social Security is the same as your service-connected disabilities, you will want to obtain these records and ensure that the VA has them. The VA is not bound by the Social Security Administration's finding, but if the Social Security Administration's decision is based on disabilities that are service connected, then their determination does carry significant weight.
However, the issue to be established in a Social Security case is different than in the VA case, and so the presence of other health impairments that are not service related often factor into a Social Security determination. Therefore, be very careful as to how much weight you should put on your Social Security records if you have other diseases or illnesses that are not service-connected.
Veterans are often denied TDIU on the grounds that they are capable of “sedentary work.” Often this is something a VA examiner will opine about without defining what it really means. In situations where the veteran’s alleged ability to perform sedentary work or light work is the basis for a VA denial, the U.S. Court of Appeals has noted that the definition of "sedentary work must be determined from the particulars of the medical opinion in which it is used…[and VA] must explain this meaning to the extent that it is not apparent from the Board’s overall discussion of the opinion as well as how the concept of sedentary work factors into the veteran’s overall disability picture and vocational history, and the veterans ability to secure or follow a substantially gainful occupation." See Withers v. Wilkie, 30 Vet. App. 139 (2018).
The work classifications are typically light work, and medium work, and these classifications have been recognized by the Social Security Administration. Exertional activities involve the typical walking, pushing, carrying things, lifting and reaching, sitting, and standing, etc.
Based on these concepts, sedentary work involves lifting 10 pounds or less and requires six hours of sitting out of an 8-hour workday. What this means in real life is that if a veteran is not able to sit for six out of eight hours during a day, then he would not be capable of engaging in sedentary work. This is an important point to consider if you have a sedentary work history but have significant physical disabilities that are service-connected, which make you unable to sit for these required periods of time or carry up to 10 pounds.
In our experience, many veterans suffering from spine (low back, neck, etc.) disabilities are unable to sit for these lengths of time. When considering the concept of what is required to do sedentary work, you can see that physical disabilities can play a big role in preventing this type of work, even if the work involves mostly the use of the brain. But you will likely miss this point if you just think that physical disabilities impair a veteran’s ability to engage in physical labor only.
It's always important to keep in mind the individualized analysis that is required in these cases. For example, I once had a veteran come to me with a hand disability. He was unable to use his left hand. When he was in the Marine Corps he played the clarinet in the Marine Corps band and then later went on to work for a period of time as a professional clarinet player or professional musician. The hand disability eventually became too disabling, and he could no longer play the clarinet. He had no other work history or skills other than being a professional clarinet player. Obviously, an injury to a non-dominant hand may not prevent some people from engaging in their employment, but for this particular veteran, it did.
But back to work classifications for a moment. Light work involves lifting no more than 20 pounds with frequent transporting of objects weighing up to 10 pounds. Jobs in this category generally require a lot of walking or standing around. Some pushing and pulling is often required, even if in a seated position. Thus, veterans with disabilities involving the extremities, such as the arms and shoulders, may be impacted by having to do light work.
The other issue to consider is that work classifications based on sedentary or light work are grounded in a veteran's capability involving physical exertion. However, these classifications do not adequately take into consideration the non-exertional activity surrounding one’s ability to think, remember, and focus.
Significant impairments in mental functioning can occur with chronic pain, and certainly, it impairs concentration and focus. In addition, certain psychiatric disabilities impair a veteran's judgment and ability to get along with others. Another area where the non-exertional mental aspect of things comes into play is the ability to follow instructions and deal with the public.
Veterans should keep a careful diary of all the ways that their service-connected disabilities impact their working abilities. These factors could involve the inability to physically do what is expected, such as light labor or even sitting for the requisite periods of time. But most importantly, veterans should carefully consider how their service-connected disabilities are affecting their ability to interact with coworkers, supervisors, members of the public, and generally get along with people. They should also consider how the disability impacts their ability to remember complex commands or instructions, stay focused, and exercise good judgment.
What if the Unemployability Comes from the Combined Effects of Mulitple Disabilities?
In the Federal Circuit opinion of Geib v. Shinseki, the court held that the VA is not required to obtain a medical report that analyzes the combined effects of more than one disability unless it is necessary to decide the claim. Part of the reasoning for this ruling was that the court felt that the ultimate analysis must be made by the VA adjudicator rather than a medical examiner.
Subsequent U.S. Court of Appeals for Veterans Claims case law suggests that, at the very least, the VA must assess whether there is adequate evidence to address the combined effects of all service-connected disabilities that impact unemployability.
There are key reasons why the VA typically denies TDIU claims. Knowing these reasons will help a veteran better prepare his claim. It is also important to understand the various factors that go into the analysis to properly present a claim. If you have received a denial for TDIU or a denial for an increased rating claim in situations where you're unable to work due to the service connected disabilities, we strongly recommend that you contact an attorney to discuss your appeal options. With a knowledgeable attorney at your side, many of these denials for TDIU can be rectified on appeal and granted.