TDIU Extra-Schedular Claims: A Closer Look

In many ways, a Total Disability due to Individual Unemployability, TDIU extra-schedular claims are a back-up to a back-up. If the Veteran does not have a 100% disability, a TDIU claim could still mean 100% benefits. And, if a Veteran does not qualify for standard TDIU, extra-schedular TDIU might be available. 2019’s Ray vs. Wilkie effectively lays out the elements of such claims.

The further one gets from the standard VA disability claims, the more complex these cases become. As a result, only the most experienced VA disability lawyers should handle these claims. Such a partnership is the best way to obtain not only monthly cash benefits but also free VA medical care.

What is “Unemployability”?

The U-word has an economic and noneconomic meaning, according to the decision in Ray v. Wilkie. The economic component is relatively straightforward. The Veteran must be “unable to secure and follow a substantially gainful occupation,” which means the inability to earn more than marginal income, outside of a sheltered environment, like a family-owned business.

The non-economic portion of unemployability is more subjective. To determine if a Veteran is non-economically unemployable, the court must look at a number of factors, such as:

• Educational and vocational background,
• Physical impairments, specifical limitations on sitting, standing, walking, lifting, bending, climbing, grasping, typing, and reaching,
• Sensory impairments, specifically vision and auditory, and
• Any mental impairments, particularly concerning the ability to adapt to change, handle workplace stress, get along with coworkers, memory, concentration, and demonstrate ability and productivity.

Essentially, there is a presumption that any disability above 30% involves at least one serious impairment. G.I. Bill eligibility sometimes affects unemployability background factors.

Application of the Rule

A Veteran with a 50% disability due to a service-related ventral hernia was denied TDIU benefits, mostly because the record indicated the Veteran could hold a sedentary job. However, the record also indicated that the Veteran could not obtain such employment due to his educational and vocational background.

The burden of proof is only a preponderance of the evidence (more likely than not). That is one of the lowest standards of evidence in the law. So, a little proof goes a long way.

In addition to medical evidence, this proof usually includes a vocational expert’s report. This individual testifies about the effects of the individual’s disability on his/her ability to work.

On a related note, the Claims Examiner must specifically state the reasons for denial of the claim. Failure to do so is an independent basis for remand. If that happens, the Veteran has a much better chance of obtaining benefits.

Note that there is no disability threshold for extra-schedular TDIU claims. However, in spite of the low burden of proof, these claims almost always fail unless there is overwhelming evidence of economic and noneconomic unemployability. That’s because these cases often have limited medical evidence of disability.

Count on Effective Attorneys

Regardless of your disability rating, full disability benefits may be available. For a free consultation with an experienced Veterans disability lawyer, contact the Cameron Firm, P.C. 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.