TDIU Automatic Claim Review?

[harry59]

Hello all,

I was wondering if the VA should automatically review a claim for TDIU once you hit 60% or more? I thought I heard on a Hill & Ponton video that that's the law.

I was going through my old 60% VA award paperwork from 2001 and saw where they wrote that I was not qualified for unemployability yet. I had 40% on my lower back, but was only a total of 60% at that time. Therefore, not qualified.

However, I looked at my 70% award paperwork from 2002 (my current  rating) and didn't see any mention of consideration for unemployability, even though my percentage qualified me for it and still had my lower back rating at 40%. I'm getting ready to file TDIU paperwork and was just wondering about that.

Thanks to everyone that replies.


 

[john999]

The VA ought to review your rating for TDIU but they almost never do unless you officially claim it.  Fill out the TDIU form and claim it.

[Buck52]

On 8/13/2021 at 7:28 PM, harry59 said:

Hello all,

I was wondering if the VA should automatically review a claim for TDIU once you hit 60% or more? I thought I heard on a Hill & Ponton video that that's the law.

I was going through my old 60% VA award paperwork from 2001 and saw where they wrote that I was not qualified for unemployability yet. I had 40% on my lower back, but was only a total of 60% at that time. Therefore, not qualified.

However, I looked at my 70% award paperwork from 2002 (my current  rating) and didn't see any mention of consideration for unemployability, even though my percentage qualified me for it and still had my lower back rating at 40%. I'm getting ready to file TDIU paperwork and was just wondering about that.

Thanks to everyone that replies.


 

YOU COULD ASK THEM ABOUT IT  AND WHEN YOU FILE YOUR IU CLAIM  ADD THOSE MEDICAL RECORDS YOU HAVE , MAKE COPIES OF THEM AND ASK TO HAVE A EED going back to these dates if your awarded the IU?

i BELIEVE YOU MAY HAVE SOMETHING HERE ,

IF YOU CAN PROVE YOU COULD NOT WORK BACK THEN...NOW IF YOU DID WORK BACK THEN  THEN NO THSY WILL NOT GO BACK THAT FAR  AND GIVE YOU THE IU..BUT YOU WILL NEED TO PROVE YOR SERVICE CONNECTED CONDITIONS KEPT YOU FROM WORKING BACK THEN....HILL AND HILL IS CORRECT ON THIS.

SOMETIMES THE VA OVER LOOKS THINGS  AND IF THE VETERAN AND HIS REPERSENTIVE DON'T CATCH IT AND YOUR TIME LINE RUNS OUT OR YOU NEVER DISAGREE WITH THERE DECISION , THAT  HURTS THE VETERAN , BUT YOU STILL MAY HAVE A GOOD CASE TO FILE FOR THIS IU and ask them to go back to those dates you were service connected  or the date your Dr said you could no longer work due to your  service connected medical problems back then. at the 40%/60% ratings

[Buck52]

CHECK THIS OUT A GOOD READ TO FAMILURIZE YOU WITH APPLY FOR TDIU.

TDIU stands for Total Disability rating based upon Individual Unemployability. It’s a fancy way of saying because of your service-connected disabilities you can no longer work or be gainfully employed.

The purpose of a TDIU claim is to pay qualifying Veterans at 100%, even if the disabilities do not add up to a scheduled 100% rating. This will ensure that a Veteran has enough finances to meet their obligations from month to month since they are unable to work due to the impact of their disabilities. 

You can qualify for a TDIU rating any time one or more of your service-connected disabilities prevents you from obtaining employment, regardless of your disability rating.

Schedular TDIU

One way to receive 100% VA compensation is through schedular TDIU. The VA defines this option as schedular because they refer to the schedule of ratings table from the 38CFR. To qualify for schedular TDIU, you must meet the following requirements using VA Math:

You have only one service-connected rating that is 60% or higher.

OR

You have two or more service-connected disabilities that add up to 70% or more AND one of those conditions is rated at least 40%. Note: “One condition” can be made up by adding the disabilities of the same body system (musculoskeletal, respiratory, cardiovascular…)

AND

You are currently unemployed due to your conditions and you are not attending school.

Extra-Schedular TDIU

Another way of obtaining TDIU is referred to “extra-schedular consideration”. This is a consideration that the VA offers for Veterans who have rare and unusual symptoms that do not meet the rating criteria under schedular TDIU. An example would be a Veteran with a service-connected rating at 20% who cannot work due to the extensive, life-altering consequences caused by his or her service-connected condition.

TDIU Is Not Permanent

Despite ‘total disability’ being part of the name, a TDIU rating will not necessarily lead to a ‘Permanent and Total’ rating. Total and permanent status is not something you can file for.

A VA rater only gives a ‘permanent and total’ designation on a case by case basis. If you are not granted this special status, your claim is always susceptible to be re-examined in the future.

Like with any other claim you file, filing for TDIU requires another C&P exam. The VA will want to evaluate all current ratings and consider the impact each disability has on your life. Remember, you must attend all scheduled evaluations.

The VA can re-evaluate your disabilities and lower your current ratings, so you no longer meet the qualifications for TDIU. However, if you are granted TDIU along with the total and permanent status, you will never need to worry about being re-evaluated by the VA again.

How Employment and TDIU Can Work Together

Since the definition TDIU contains a component of individual unemployability, it may sound strange to hear that you might be able to work. Here are two ways you can receive TDIU even though you are working:

Marginal Employment

If your income from your job is below the current federal poverty threshold, then it is “marginal” employment. This means that your work is not ‘substantially gainful,’ so you may still qualify for TDIU benefits.

Protected Work Environment

A family business, self-employment, or employment that allows accommodations equals a ‘protected work environment,’ in the eyes of the VA. They interpret this to mean you would not be employable on the open market without these protections. Consequently, the VA does not consider work in a protected environment to be substantially gainful employment…even if you earn income above the poverty line.

What Does Substantially Gainful Mean?

‘Substantially gainful’ is an essential term within the VA system. They use it to mean that you are employed and earning above the poverty level.

Earning an income below the poverty line, or working in a protected job, means you do not have substantially gainful employment, according to the VA.

The 2019 federal poverty guidelines for the continental U.S. indicate the poverty line for one person is $12,490 a year. For each additional person in the family, add $4,420. Alaska and Hawaii have their own federal poverty levels. The Fed’s 2020 poverty guidelines are due out soon.

What About Sedentary Work?

The lines can blur with sedentary work. The VA may deny a TDIU claim because it thinks that the Veteran is capable of sedentary work. This may or may not be accurate.

Sedentary positions have long periods of sitting or standing with light lifting and carrying no more than 10 pounds. This can still be painful and difficult, depending on your disabilities.

The VA needs to have the medical evidence to support their opinion if they plan to deny TDIU because they believe sedentary work is possible.

Keep in mind the Veteran must be capable of performing the job too. This means they must have the aptitude for such work. Otherwise, they would not be able to hold the position successfully.

This means that for you to win your TDIU case the first time or on appeal, you need to have targeted, supporting medical opinions and documentation as well.

Have You Been Denied TDIU?

Were you recently denied for an Individual Unemployability claim? Do you have a decision letter? Go ahead and take the time to read the explanation for the VA’s decision. This might give you some insight into how to fight this decision.

If you were denied for TDIU and your appeal window has closed, you can file a new TDIU claim. Be sure to answer the issues the VA had when they previously denied your claim. This improves your chances of having your TDIU claim approved next time.

Understand Why Your TDIU Claim Was Denied

Before you appeal, it is always smart to understand why the VA denied the claim in the first place. That way, you know the specific issues you need to address in your appeal or new claim.

The VA sometimes argues that the Veteran is unemployable because of age or non-service-connected disabilities. For example, Veteran Joe applied for TDIU, and the VA denied his claim. They said that his problems with his knees, which aren’t service-connected, was the reason he couldn’t work at his UPS job.

The VA overlooked the fact that Veteran Joe’s service-connected severe anxiety disorder causes him to be anxious in traffic and during interactions with co-workers and clients. It is his severe anxiety disorder that prevents him from holding gainful employment.

Make Sure You Meet the TDIU Qualifications

Some veterans file for TDIU and only have an overall rating of 50% or less. By the VA standards, the Veteran will automatically be disqualified for the TDIU claim based on this rating. Technically, the Director is supposed to review your claim for Extraschedular TDIU, but this is rare and hard to win.

Review the qualifications at the beginning of this article to ensure that you qualify for TDIU Benefits.

Appeal Your TDIU Denial

If you meet the TDIU qualifications and cannot work due to your disabilities, you can contest the VA’s decision. You have 365 days from the date of the decision letter to appeal.

First, as with any appeal, you will need to submit a 21-0958 form, which is the Notice of Disagreement or NOD. You have a year to submit this form, but we recommend sending it sooner rather than later.

By submitting the NOD, you guarantee your window stays open. Then if the VA grants TDIU during the appeal process, you will get back pay all the way to the date of the original decision letter you appealed!

If it has been more than a year since the VA denied your TDIU claim, your window to appeal has closed. You can reopen the TDIU claim and file it as a new disability.

The VA does not limit how many times you can try filing for this claim. The only difference between appealing the TDIU denial and reopening it as a new application is that you will not be eligible for back pay. But do not let that stop you. If you qualify for TDIU, start the process of filing it again with the VA.

Conclusion

Total Disability Individual Unemployability can be a complicated claim by VA standards. At $3,000 a month tax-free, these are undoubtedly big money claims to the VA. They will fight hard and use any excuse they can find to deny a TDIU claim.

If you’ve been denied but still feel you meet the qualifications, do not accept the VA’s last word as the final word. Their denial only means you have to fight harder and smarter.

 :SOURCH :Strategic Veteran 

Edited August 15, 2021 by Buck52

[harry59]

Thanks, Buck52. I did work back then. It was painful, but I did what I had to do. Since the VA never mentioned TDIU in my 70% rating paperwork, I never thought about applying back then. I'm now physically unable to work and am in the process of filing. 

Thanks again.