Putting the “U” in TDIU: Proving “Unemployability” in a Total Disability Claim
How to put the “U” in TDIU and prove “Unemployability” in a Total Disability Claim. When a veteran is unable to work but the VA does not rate the veteran 100% disabled in the traditional sense, other ways of reaching totally disabled status are available. A common claim in the veterans’ disability structure is the Total Disability based on Individual Unemployability, or “TDIU,” claim. This is a useful claim when none of a veteran’s individual disabilities reach 100% rating status, but he or she is still unable to maintain gainful employment because of the effects of his or her disability picture as a whole.
The “T” and “D,” or the total disability component of a TDIU claim, is rather straightforward. Normally, the Veteran must have at least one condition that is 60% disabling, or a combination of conditions that, together, equals 70% disabling. In cases where the veteran claims to be totally disabled such that he or she cannot work, but does not meet the schedular requirements we have outlined above, “extra-schedular TDIU” can be requested, though the process is more complex. Essentially, a VA director must confirm that the case is eligible for extra-schedular consideration, before the issue is adjudicated officially.
The “I” and the “U,” or the individual unemployability component, is more subjective.
The VA must consider how the disability picture affects the individual, not just the average veteran.
Usually, the VA rates disability based on the physical effects of the disability. Take PTSD, for example. One common PTSD symptom is sleeplessness due to nightmares. You may not immediately connect sleeplessness, which usually occurs at night, with problems with employment, which is usually a daytime activity. However, sleeplessness does not just affect people at night. Veterans who do not get sufficient sleep at night are often unable to effectively function the next day, which usually causes problems with employment.
To continue with the PTSD example, such symptoms are self-reported and cannot be “seen” visually by a doctor. A veteran must express his or her symptoms to a doctor, and the doctor must create a report, and then the report is translated into a disability rating by a third party – a claims examiner. This system works fairly well in many areas, such as permanent physical conditions. But it often breaks down in PTSD cases. The brain usually conceals its own injuries. So, many veterans are not fully aware of how their psychological symptoms affect them, or may not remember their past symptoms when they finally see an examiner. They may not know their problems functioning at work are connected to sleeplessness or irritability.
This point is the essence of this component of a TDIU claim. The issue is not really the medical effect of a disability. Instead, the issue is how the veteran’s disability picture, when considered in its entirety, affects his or her ability to maintain employment. A VA disability lawyer must show how the disability affects the veteran in everyday situations. That is something no medical chart can convey.
Additional evidence on this point usually includes the layperson testimony of friends, co-workers, and family members. These individuals cannot testify about the extent of the veteran’s brain injury. But they can testify as to the practical effect of PTSD and other brain injury symptoms, such as a veteran’s irritability, inability to maintain relationships, unreliability, and other traits. They can also speak to the increase or decrease in severity over time, or at varying stress levels.
The definition of “unemployable” is similarly complex.
Initially, it is important to note that “unemployable” does not necessarily mean “unemployed” in the traditional sense. For example, “unemployable” can apply to veterans who the VA deems underemployed considering their skillset.Working part-time or working for pay that is below the poverty line. And working even though their disability is severe enough to qualify for benefits. In other words, they are working even when they should not be.
A common two-part test is first, a veteran’s employment is gainful, e.g., it’s full-time and pays above the poverty line. Then, the second part; the veteran can maintain employment, e.g., the employment situation is sustainable. Some veterans can obtain gainful employment but are not healthy enough to stay employed for very long.
Frequently, attorneys work with vocational experts in these situations. These individuals give expert testimony about the veteran’s employment prospects in the current environment, given the veteran’s disabilities.
Count on Tough-Minded Attorneys
Total disability benefits may be available to veterans who the VA does not consider 100% disabled. 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 form on our website. We are proud to represent Veterans nationwide.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.