What Does the Law Say About TDIU Effective Dates?
It is critical to understand the legal aspects concerning TDIU Effective Dates. The proper backdating of a Total Disability due to Individual Unemployability claim, as well as the correct understanding of the nature of these claims, could mean thousands of dollars in additional benefits for your family.
Total disability benefits are available if the Veteran has a qualifying partial disability and the Veteran is unemployable. Typically, the partial disability must have at least a 60% rating, or there must be multiple conditions with a combined 70% disability rating with one of those ratings being at least 40%. “Unemployable” usually means the Veteran cannot secure meaningful employment in an unsheltered environment.
These rules are more like guidelines, as there are a number of exceptions and exclusions. So, unless an experienced VA disability attorney handles your TDIU appeal, you may not get all the benefits you deserve.
Generally, the court backdates disability benefits to the date the application was filed. Technically, a TDIU matter is not an application for benefits. Rather, TDIU is a request to reconsider the amount of benefits the VA allowed. So, the date-of-application rule does not apply. Instead, the one-year reconsideration period under 38 U.S.C. § 5110(b)(2) is controlling. This provision states that if the VA receives any new evidence of disability within the one-year appeal period, it must consider such evidence “as having been filed in connection with the claim which was pending at the beginning of the appeal period.”
Disability re-evaluations are quite common as part of a TDIU claim. Frequently, the Compensation and Pension examination doctor fails to properly assess the Veteran’s disability during an initial exam. In other instances, symptoms may have worsened since the time of a previous exam. This is frequently common in PTSD claims.
Lay testimony is a good way to overcome this problem. The Veteran’s firsthand account of the impact and severity of their symptoms is very useful in helping to obtain an appropriate assessment of the disability. Friends, family members, co-workers, and other people inside the Veteran’s circle can also provide, useful, descriptive accounts the Veteran’s PTSD symptoms and how they affect the Veteran’s daily life.
Extra-schedular TDIU claims are even more complex in this area. Largely depending on the Veteran’s symptoms, it might be possible to obtain TDIU benefits even if the victim does not meet the aforementioned percentage cutoffs.
Disability rating is only one part of a TDIU claim. Veterans must also prove they are unemployable. As mentioned, this label has two components:
- “Unsubstantial” usually means the Veteran cannot earn enough money and/or work enough hours to subsist above the poverty line. There are other ways to prove this element, as well.
- “Unsheltered” means the Veteran’s employer is not a family business, fellow Veteran, or other person who allows the victim to come in late, leave early, and otherwise accommodate the Veteran’s disability in ways that other bosses would not.
Note that “unemployable” does not mean “unemployed.” Many Veterans are working, and have worked for many years, yet they are legally unemployable.
Frequently, VA disability attorneys partner with vocational experts to accurately determine the unemployability date. These individuals account for medical, economic, educational, and other factors when they determine when the Veteran became unemployable.
Determining the Correct TDIU Effective Dates
The difficulty in this area stems from the fact that TDIU is not considered a separate claim. The effective date is therefore reliant on other factors. The key factors in this determination include the date the VA received evidence of the Veteran’s unemployability, and the status of the Veteran’s disabilities at the time such evidence was received.
Reach Out to Assertive Attorneys
Regardless of your percentage rating, total disability benefits might be available. For a free consultation with an experienced Veterans disability lawyer in San Diego, contact the Law Offices of Peter S. Cameron, APC at 800-861-7262 or fill out the contact box to your right. We are here to represent Veterans nationwide.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.