TDIU Denied Due To Old Age or Retirement?
Can the VA have your claim for TDIU denied due to old age or retirement?
The “Disability” in a “Total Disability due to Individual Unemployability” (TDIU) claim must be a service-related disability. According to 38 C.F.R. § 4.19, the claims examiner may not consider age in TDIU evaluations. Age is only relevant in certain other matters, such as pension eligibility.
This provision is quite obscure, and it is just one example of the many scattered laws that affect TDIU claims. Only an experienced Veterans Administration disability attorney knows how to bring these scattered laws together to create a strong TDIU argument.
TDIU Denials
As a threshold matter, Veterans must be at least 60% disabled. Or, they must have two or more disabling conditions that amount to a 70% disability with at least one condition having a 40% impairment.
Claims examiners routinely deny TDIU applications, especially on the first time applying. Therefore, an independent medical evaluation may be necessary in order to secure your TDIU benefits. Many times an independent doctor reaches different conclusions than the Compensation & Pension (C&P) doctor, paid for by the VA. For example, the C&P physician might be very skilled with physical disabilities, but not so adept when it comes to emotional impairments, like Post Traumatic Stress Disorder.
To establish a qualifying disability, claimants may use service records in addition to medical records. Both of these pieces of evidence can work in concert and help clearly establish a service-related disability for TDIU benefit purposes
Please remember that the law is clear that age cannot affect a VA disability claim. The law is a bit more uncertain as to the link between Social Security Disability (SSD) and VA disability.
Sometimes, SSD helps a VA claim. If one government agency has determined that the Veteran is disabled, it is easier for a VA claims examiner to reach a similar conclusion. On the other hand, an SSD claim could undermine a VA claim, if there is evidence that the disability is not completely service-related.
Obtaining TDIU Approvals
The medical aspect only establishes the bare minimum. Disabled Veterans only receive maximum benefits if they convince claims examiners that their case is unusually severe. Therefore, a VA disability appeals attorney may utilize evidence such as:
- Vocational Experts: Just like the combination of service and medical records often establishes a baseline, a vocational expert’s testimony combines medical and vocational evidence to establish a need for maximum benefits.
- Lay Testimony: Spouses, children, neighbors, and coworkers are often in a good position to testify about how a disability affects the Veteran’s everyday life. These simple and straightforward stories are often compelling.
- Employer Testimony: Contrary to popular myth, employed Veterans may still be “unemployable” in this context. Perhaps they receive an excessive number of accommodations. Or, perhaps they work in a sheltered environment. If the business owner is a friend or relative, the owner might bend the rules for the Veteran in terms of attendance and other items.
The burden of proof in these instances is “as likely as not.” That is a rather low burden. So, Veterans need not produce overwhelming evidence. It just needs to be convincing.
Reach Out to Dedicated Attorneys
Claims examiners may only consider certain factors in TDIU claims. For a free consultation with an experienced Veterans disability lawyer, contact Cameron Firm, PC 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.