What is the Difference Between “Unemployable” and “Unemployed” for TDIU Purposes?
This article will clear up any misinformation regarding Unemployable and Unemployed for TDIU Purposes. Most people consider these two words synonymous. But in the context of a Total Disability due to Individual Unemployability claim, there is a big difference between the two. 2001’s Roberson v. Principi outlines this difference.
The TDIU provision in the Code of Federal Regulations allows Veterans to obtain maximum benefits even if they are less than 100% disabled.
The law in this area is quite complex. Claims Examiners often rely on this complexity to deny TDIU claims. An experienced VA disability attorney clearly explains your legal options and stands up for the benefits you deserve.
Summary of the Case
This case is an example of the long, drawn-out fight Veterans must often undertake to obtain proper disability compensation. This Veteran, who served in Vietnam between 1967 and 1971, fought until 1984 to obtain disability benefits for his service-related Post Traumatic Stress Disorder. The VA said he had a 70% disability rating and had issues finding and holding a job. That finding was backdated to 1982.
In 1989, lawmakers amended the relevant provision to state that if a Veteran had at least a 70% PTSD disability rating and was certifiably unemployable, the rating should be raised to 100%.
Based on that change, the Veteran’s disability attorney requested reconsideration. The Board did so, but only made the higher rating retroactive to 1987. Based on the available evidence, the Veterans’ Court determined that the claimant was not 100% unemployable until 1987.
The Veteran had a few short-term construction jobs during this period. However, due to his inability to concentrate and other PTSD symptoms, he was unable to hold these jobs for more than a few weeks or months.
Ultimately, the Federal Circuit Court of Appeals stated that there was a difference between “substantial gainful employment” and “100% unemployable.” Essentially, a Veteran can be working and still be unemployable.
“The use of the word ‘substantially’ suggests an intent to impart flexibility into a determination of the veteran’s overall employability,” the decision stated. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100%.”
Application
Unfortunately, Roberson does not specify the amount of evidence needed to establish unemployability for TDIU purposes. The general standard of evidence in these situations is a preponderance of the proof (more likely than not). That is a relatively low standard.
To meet this standard, a Veteran needs to produce more than employment and medical records. A Claims Examiner or court could easily determine that the lack of employment indicates the Veteran’s unwillingness to work. As opposed to the inability to work, even if the Veteran is clearly disabled.
To fill in this gap, attorneys often turn to lay testimony and vocational expert reports. Statements from friends, family members, and former co-workers or bosses about the everyday obstacles the Veteran faces are often quite compelling. A vocational expert looks at all available evidence in the context of the Veteran’s employment history. He or she can testify that market conditions, when coupled with the Veteran’s disability, renders the Veteran unemployable.
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.
