The Two Most Important Factors in Winning TDIU Cases

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Not all TDIU claims are created equal. That is, what makes one veteran totally unemployable may not affect another veteran's ability to work. There are two key factors that you must consider when addressing claims for total disability based on individual unemployability. As a veterans disability lawyer who has won countless TDIU claims, I realize that these factors are critical to success.

As an example, let's say that one veteran's sole work history consisted of doing heavy manual labor. His only education is a high school diploma. This veteran injured his back during service, and was eventually awarded service-connection. As time progressed following service, the veteran's back disability worsened to the point that he could no longer perform his job doing heavy manual labor.

The veteran had no work experience in a sedentary job. He did not even know how to use a computer--or even how to type on a keyboard. The worsening symptoms did result in a rating of 40 percent for his spine disability but VA denied TDIU on the grounds that he could still do sedentary work and that he did not meet the percentage requirements for TDIU. The veteran continued to appeal and eventually obtained a separate 20 percent rating for the neurological impairments to his lower extremities resulting from the spine disability.

But TDIU was not granted because, VA contended, he was not prevented from doing sedentary work. However, this veteran's vocational background was exclusively in heavy, physical labor jobs. The veteran had absolutely no experience or training in sedentary lines of work. And this is the first most critical factor: vocational background. 

Total disability individual unemployability (TDIU) takes into consideration the unique vocational history of a veteran. A veteran with work experience as an accountant would likely not be totally disabled as a result of a back disability, but someone whose background is manual labor would be far more impaired.

As a veterans disability lawyer who represents veterans in VA appeals for unemployability, I recently obtained a TDIU award for a veteran that paid over $400,000 in retroactive pay precisely because this veteran's back disability prevented him from doing manual labor work, which was the only work he was qualified to do.

The other factor is education. Although a veteran may have work experience that is confined to a certain type of work, he may have education and training in other fields that would allow him to transition to another form of employment. For example, a veteran may be trained as an accountant but he had been working as a bricklayer. If his physical disability prevented manual labor work, it is conceivable that he could transition to sedentary accounting work.

The important thing to remember with education is that times change. What I mean is that training from 25 years ago in computer science would do little to assist a veteran in transitioning to computer work today. The rapid changes in technology could render prior education and training obsolete. 

The U.S. economy has been moving more and more away from the physical trades. The VA rating code, however, is still placing heavy emphasis on disabilities that impair work in the phsycial trades. But with an emerging information economy, along with employers' accommodations for physically disabled employees, physical disabilities pose less impediments to employment. 

This is why, as an experienced veterans benefits lawyer, I have found psychiatric cases to be far more disabling. Here's why.  If a veteran has severe PTSD, for instance, to the point that he cannot be around people or interact with co-workers or supervisors, it doesn't matter whether he's sitting at a desk or working in a coal mine, his psychiatric disability would prevent successful employment.

As a veterans disability attorney, when representing veterans in VA appeals for TDIU, I often find it necessary to add a service-connected psychiatric disability to the overall strategy. This can be done by looking for the existence of depression secondary to the pain caused by a service-connected physical disability. Also, in VA appeals for a higher rating for a psychiatric disability, most veterans benefits lawyers will raise a claim for TDIU as part and parcel of the appeal for a higher rating. In fact, it should be standard practice for any veterans disability lawyer to raise TDIU in any case where it appears that the service-connected disabilities cause a veteran to be unable to work. 

So, to be successful, a veterans disability appeals lawyer should carefully analyze the veteran's work history and educational background. At our veterans disability law firm, it is standard practice to hire a vocational expert in all TDIU cases, especially those where the veteran does not meet the percentage requirements of the VA regulations relative to TDIU.

 

 

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Related topics: TDIU (5) | total disabiity individual unemployability (4) | extraschedular consideration | vocational background | educational background

Eric Gang

Eric A. Gang, Esq. is a veterans’ disability attorney who represents disabled veterans nationwide in their appeals for VA disability benefits. He has litigated over 500 appeals at the U.S. Court of Appeals for Veterans Claims and has recovered millions of dollars in retroactive benefits for disabled veterans. His work has been mentioned in media outlets across the country. He publishes and lectures widely in the area of veterans benefits. You can reach him at (888) 878-9350 or www.veteransdisabilityinfo.com.



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