Total Disability Individual Unemployability (TDIU/IU)

Far too often, we represent veterans who need a medical opinion or supporting statements that are not in the file. Other times, a failure on behalf of the VA needs to be pointed out and addressed. Do not risk losing your case due to substandard representation.

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Were you denied VA benefits?

Given the structure of the current Department of Veterans Affairs’ (VA) disability compensation framework, Veterans who have service-connected disabilities totaling 100% (either as a single or combined rating), will receive (as of December 1, 2019), a tax-free, monthly award of $3,106.04 (of course, there are additional benefits on top of that base monthly award, including additional awards for dependents, aid and attendance, special monthly compensation, and more).

 

However, what happens when a Veteran’s service-connected disabilities do not add up to 100%, yet those same disabilities prevent a Veteran from working? Under certain circumstances, Veterans can qualify for what is known as individual unemployability (also known as IU, total disability individual employability or TDIU). Individual unemployability (IU) is an extremely helpful benefit that compensates a Veteran as if they had 100% service-connected disabilities (i.e. entitled to no less than $3,106.04 per month).

 

In order to qualify for monthly IU benefits you must satisfy two requirements.

First, you must have the requisite service-connected disability rating. Even though 100% disability is not required, you do need some level of service-connected disabilities (in most instances). If you are a Veteran and you have at least one service-connected disability rated at least at 60%, you would meet the first of the two requirements. Alternatively, if you do not have a single serviceconnected disability over 60%, you could still qualify IF, you have multiple service-connected disabilities, that have a total combined VA rating of 70%, with at least one disability rated at 40% or more.

 

Please note, there are limited circumstances where, even if you cannot meet the single 60% service-connected disability or the combined 70% service-connected disabilities (with at least one being greater than 40%), you may still be able to qualify for IU (at least the first requirement). The applicable regulation states that, “all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards . . .” 38 CFR § 4.16. Therefore, if there is evidence showing a Veteran’s service-connected disability or disabilities created a unique or highly complicated disability picture, the service-connected ratings portion of the first requirement may be modified or excused, but only under rare occasions. That is why consulting an experienced veterans’ disability attorney is so important.

Once you are able to satisfy the first requirement, IU has a second requirement, whereby a Veteran must prove that they are unable to secure or follow a substantially gainful occupation as a result of their service-connected disabilities. Of course, the million dollar question is what constitutes “substantially gainful employment”? The short answer is that the VA has, perhaps purposefully, not defined the phrase. Therefore, each Veteran will have to present a detailed account of both the disability-related reasons why you are unable to work AND why your disabilities limit the amount of income you are able to earn.

 

The regulation states that “marginal employment shall not be considered substantially gainful employment . . . marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed . . . the poverty threshold for one person.” 38 CFR § 4.16. Additionally, Veterans who are employed in a “protected environment such as a family business or sheltered workshop”, even if they earn in excess of the poverty threshold, may still be deemed marginally employed and thus be eligible for IU benefits.

 

Please keep in mind that our office handles appeals of your VA disability claims.

Therefore, if you are denied on your initial IU application, we can file an appeal, and we will utilize our extensive network of doctors and other medical and vocational experts to review records, provide expert consultation, and, where necessary, draft medical opinions supporting our legal arguments in support of your IU appeal. Please remember that you do not pay any upfront attorney fees for an IU appeal. Rather, if we are successful in securing your IU benefits, a fee of 20% would be collected out of the back-pay only. All future payments going forward, from the day the VA grants your IU benefits, will be 100% yours, tax-free. Therefore, retaining an experienced attorney is affordable and practical.

 

Things to remember if you are thinking about filing an IU claim.

The most important thing to remember when determining if IU is appropriate for your specific circumstances, is the restrictions on your future employment. Because IU is determined based upon your employability, if you begin working (more than what is deemed “marginal” employment) at some point in the future you will lose your IU benefits. On the other hand, a total disability rating (a 100% service-connected disabilities) has no impact upon your ability to work and retain your VA disability benefits.

 

Another important issue is what the VA can, and more importantly cannot, review when assessing a claim for IU benefits.

The VA is supposed to take into account the Veteran’s current physical and mental condition and their employment status, including the nature of employment, and the reason employment was terminated. Extraneous factors, such as age, non-service-connected disabilities, injuries occurring after military service and availability of work, are not supposed to be utilized by the raters in making their decisions. Rather, it must be determined whether the severity of service-connected disabilities alone, prevent the Veteran securing and following a substantially gainful occupation.

 

Additionally, with so many Veterans utilizing their educational benefits, we are often asked whether attending school would preclude them from obtaining IU benefits. There is no direct bar to benefits merely because you are attending school. However, it will be imperative for you to show the VA why your service-connected conditions prevent you from securing and following a substantially gainful occupation, but do not preclude you from attending classes or attaining your educational aspirations. Our attorneys and experts can help identify evidence and craft arguments to strengthen your case in support of your IU claim.

 

In order to begin a IU claim, you must file a Veteran’s Application for Increased Compensation Based on Unemployability (Form 21-8940)(other forms may be applicable, please contact us to ensure you are using the proper forms and submitting the evidence necessary to support your claim). This is a rather long form which will require a large amount of information regarding many aspects of your life, including medical history, educational history and your past work history. For example, the application requires you identify your service-connected disabilities. You must identify and list your healthcare providers. You must also identify past, recent and present employment information, including name and address of employer, hours worked, position held and wages earned. Questions related to your educational history (from grade school to college) and work-related training also must be answered.

 

Because our office handles only appeals of your VA disability claims, it is only after you have been denied your initial application for benefits, that we can then step in and help you secure your benefits. Our attorneys and staff members are experienced in navigating through the IU appeal process and have knowledge of the evidentiary requirements the VA will be looking for when your claim is assessed on appeal. Therefore, it is important that you consult an experienced veterans’ disability attorney to ensure proper appeal documents and evidence is submitted to the VA.

 

Veterans often have questions regarding the intersection between IU benefits and Social Security Disability Insurance (SSDI).

SSDI is a program that offers monthly disability payments to people under age 65 who have qualifying disabilities and sufficient work credits. SSDI and VA benefits (including IU) are completely separate and distinct benefit programs managed by completely separate Administrations with each requiring their own applications and evidence. The good news is that you are able to qualify and obtain both benefits simultaneously. The VA is required to consider the Social Security Administration’s (SSA) disability determinations as part of its decision making process. However, the VA, as its own independent agency, is not bound by any SSA decision. Unknown to many, the SSA and VA are required to share medical records, disability ratings and other information. The SSA and VA are working together to increase their coordination and to expedite decisions wherever possible, according to the respective Administrations.

 

The key differences between SSDI and IU benefits include the fact that the VA only assesses service-connected disabilities.

Whereas the SSA considers the whole person and assesses all disabilities. Significantly, the VA is not allowed to consider age when assessing your IU claim. Applying for SSDI and IU at the same time may help increase your chances of the VA approving your claim. In any event, the SSDI process will likely conclude prior to the VA. Therefore, applying for each benefit will hopefully help ensure you receive some income while the other claim is pending approval. Beware of some potential pitfalls with filing a SSDI claim, which could include negative or contradictory records in the SSA file. Additionally, if you are applying for SSDI for disabling conditions that are not service-connected through the VA, you may have a more difficult time establishing your IU claim. Again, these oftentime complex and confusing issues highlight the importance of retaining an experienced veterans’ disability attorney who will help you secure all the benefits you deserve and are owed.