If you have a combined rating of less than 70 percent or you do not have one disability rated at 60 percent by itself, chances are the VA has denied your TDIU claim. As a veterans disability lawyer, I can say, based on many years of experience, that VA generally denies TDIU claims if you do not meet the percentage requirements of 38 U.S.C. § 4.16. This does not mean, however, that winning total disability based on individual unemployability or TDIU is impossible.
To illustrate my point, let me share the details of a case we just won at the Board of Veterans Appeals. Our client had been appealing his case for almost a decade. His underlying appeal involved an increased rating claim for a low back disability. He was rated at 40 percent for the back disability. As part of his appeal for an increased rating, we also asserted a TDIU claim on his behalf since he was unable to work as a result of his service-connected back disability.
The VA denied the claim because his only service-connected disability was the low back rated at 40 percent. We won TDIU for this veteran on an extraschedular basis. This means that although he had a combined rating for his low back of only 40 percent, the VA awarded him total disability.
The key to this case, or any TDIU case on an extraschedular basis, is establishing that the disability prevents the veteran from working. Critical to this analysis is looking at the veteran’s unique work history and educational background. In this case, the veteran had little education and most of his work history was doing manual labor jobs. His last job was washing dishes at a restaurant. He was not qualified to do any sedentary work. So, given his lack of education and work history, we were able to show that the 40 percent service-connected back disability made him unable to perform the only kind of work he knew how to do.
To accomplish this, we retained the services of a vocational expert. The expert interviewed our client and prepared a report. The expert concluded that there were no jobs that this veteran was qualified to perform that he could do given his disability. In other words, the service-connected disability, although rated at only 40 percent, cancelled out his ability to do any of the work he was qualified to perform. In light of this evidence, the Board of Veterans Appeals was forced to grant TDIU on an extraschedular basis. This veteran will receive a retroactive check that exceeds $200,000.
The point here is this: a careful analysis of a veteran’s education and work history are critical to determining if he can win a TDIU claim on an extraschedular basis. The less education a veteran has and the more manual labor jobs he’s had in the past, the more likely a physical disability will render him incapable of maintaining a gainful occupation. Moreover, retaining the services of a vocational expert is critical in TDIU claims. There’s also no substitute for speaking with a veterans disability lawyer when you have been denied a TDIU claim.