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HAR2016

Chances of TDIU / Unemployability & Effective Dates

Question

My husband recently applied for TDIU or Unemployability as it’s known to others. I was wondering if someone could give me any advice on his chances of approval or eligibility based on his employment history? He meets the criteria for TDIU. I just don’t know what kind of employment history or not makes one eligible.  Also if eligible for tdiu, what would his effective date be? 

Some background: 

Discharged 2011 

Was active duty infantry in Afghanistan  

2012 Rated 30% service connected for PTSD 

2012 worked at fast food job for 3 months before fired for no call / no shows 

2013 no work 

2014 worked 4 months at a job before the job was over and the position was terminated - he was laid off 

2015 rated 70% ptsd

2015 - also no work this year 

2016 no work

2017 no work

2018 started work at a family members business - accommodations were made (allowed to work alone; allowed absences,  breaks etc) 

2018 - started claim - for increase due to working issues - but didn’t file 

Feb. 2019   filed for increase from 70% to 100% ptsd based on effects of ptsd at work and in daily life - 

April. 2019 c & p exam

April. 2019 Received decision on claim- PTSD continued at 70% disabling 

April. 2019 Started claim for TDIU 

August 2019 Quit employment at family members business due to ptsd.

Earned roughly 13,000 in one year (poverty level is roughly 24,000 in my region based on family size)  well below poverty level 

September 2019. Filed for IU. 

Does his history show show enough or not show enough work to qualify for tdiu? 

What would his effective date be? 

He has been unemployable since his discharge 2011 but he wasn’t rated at 70 until 2015, since 2015 he has not worked until 2018 when he started work for a family member. 

Even with accommodations he couldn’t work and now he is unemployed again. 

 

 

 

 

 

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The history shows he might get his service connected percentage increased. But the VA isn't going to take the veterans word on his employment history. He needs statements from his past employers as to why he was terminated.  He will also need to see his doctor, and  find out what his doctor thinks about how serious his PTSD is. Keep in mind its not enough to say he cannot work, he has to show that it is his PTSD that makes it hard to hold down a job. He also should be receiving continuing counsel and treatment for his PTSD. 

While his 70% rating meets the threshold to a TDIU rating,  a lot more than just the 70% rating is considered. 

His effective date would be Sept 2019, since that is when he filed....and if TDIU is granted.

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The odds are good, provided that, you have evidence documented.  

1.  Did a doctor state he was "unable to maintain SGE due to SC conditions?"   If so, his chances are good.  

2.  Your chances are better yet, if he has a voc rehab assessment which confirms the above, and it helps if the voc rehab assessment explains why he can not do sedentary work, either.  

3.  Lastly, was he awarded social security disability?  If he meets social security's defination of a disability, and, if that (those) disabilities are service connected, your odds of approval increase dramatically.  

     There are many reasons for "not working".  Companies have layoffs, and some people just dont want to work all that bad.  (Not that Im accusing you of that).  But his reason for not working needs to be he is UNABLE to work due to sc disabilities.  

      Sometimes, the reasons people are not working is that they need training.  I dont know the reason(s) you are not working, but a doctor needs to state the reason is that you are UNABLE to work due to sc conditions.  

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the others are right, the answer to your main question, can he get tdiu, is based on why he keeps losing the jobs.

Once you apply for TDIU the VA will get his Social Security Income report, which will show all taxable income earned and the source.

you should get that same report, you do it on the SS website.

The should send him to a vocational evaluation as well as C&P's to evaluate his condition as a claim for TDIU is also considered a claim for increase.

To win this claim, at each job he has held, and was let go from, he should try to get letters from supervisors or coworkers or better yet HR saying he was terminated based on whatever and hopefully they list his ptsd related behaviors.

The VA is going to ask those previous employers for that information. What works in your favor is that Employment law limits what the employers can typically answer to such a request. That means if the coworkers etc write letters saying your husband was XXX XXX blah blah blah at work and got canned because of those behaviors, then it will bolster the IU claim.

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 Back when I got TDIU P&T the VA did go back and check my work records..I had shown to stop working in 1999 Actually it was before that but the SSI Records showed I stopped working in 1999 and was awarded  the TDIU in 2002 however the award was 2002 they paid me retro back to 1999  the year I showed to have stopped working  but my EED is 2002  the year I was awarded the TDIU P&T....My thinking was my EED Should have been the 1999  but the VA Says different, they are going by my award date which was 2002   I got the TDIU on applying for increase in 1999.

For some crazy reason or another I had thought the EED Goes back to the date first filed (for the increase) but it don't work that way obviously

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Effective dates are complicated but the general rule is the effective date is the later or the date you applied or the date the doc says you became disabled. (In this case the date the doc says you are "unable to work due to sc conditions).  

There are exceptions to the general rule I posted, and 2 of those exceptions which are common but often overlooked by VA are:

1.  When you exit from the service, and apply for benefits within a year, you get back to the date of exit from service.  The regulation explains it thusly:

Quote

(b)

(1)
The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

2.  In the case of an increase (tdiu is an increase if you had previously been sc):

(3)

Quote

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

You can read the regulation to see if other exceptions apply to you:

https://www.law.cornell.edu/uscode/text/38/5110

Take notice:   "Supplemental claims" are given better effective date rules when new evidence is submitted than "higher level review".  So, think twice before you ask for a higher level review.  

     

 

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