VA Claims self help guide PART III

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VA claims self help guide PART III

Individual Unemployability:
Individual Unemployability (IU) or also known as Total Disability due to Individual Unemployability (TDIU) is a rating that pays veterans at the 100% rate who do not meet the 100% criteria according to the 1945 Rating schedule because they are unable to secure and maintain a substanstial gainful occupation due to their service-connected disability(ies). The requirements needed to be considered for IU are spelled out in §4.16. There it states;

Ҥ4.16 Total disability ratings for compensation based on unemployability of the individual.
(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:
(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,
(2) Disabilities resulting from common etiology or a single accident,
(3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,
(4) Multiple injuries incurred in action, or
(5) Multiple disabilities incurred as a prisoner of war.

It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (Authority: 38 U.S.C. 501(a))

(b)It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996]”

One thing to keep in mind is that if a veteran doesn’t meet the schedular requirements stated in sub paragraph (a), there is still the possibility of obtaining IU under sub paragraph (b). However, considerations under sub paragraph (b) rarely happen because, first, the RVSR must think you are unable to obtain and maintain a substantial gainful occupation due to your service-connected disabilities, which becomes a judgmental call on their part and, second, if the RVSR thinks you can’t work because of your service-connected disabilities, he/she must submit the claim to the Director of Compensation and Pension in Washington, D.C. for extra scheduler approval.

Having said all of this, a veteran still should file the application for IU (VA Form 21-8940) if they are unable to work because of their service-connected disability, regardless of their rating percentages. I say this because when a veteran submits VA Form 21-8940, it also acts as a claim for an increase in evaluation. If the veteran does not meet the schedular requirements stated in sub paragraph (a) and submits the IU application, the VA will first see if the disability(ies) warrants an increase in evaluation. If so, they will determine whether the increase then meets the schedular requirement, and if they do, then VA will address the issue of Individual Unemployability. By submitting VA Form 21-8940 when one is unable to secure and maintain a substantial gainful occupation die to their service-connected disability(ies), regardless of their rating percentages, they protect the earliest effective date possible.

If you decide to apply for IU, there are a couple of things you can do to speed the process up a little bit. When sending in VA Form 21-8940, you should have each of your former employers from the last five years fill out and sign VA Form 21-4192 and then attach them to the IU application. Also, if any of your private physicians can write statements concerning you being unable to work because of your service-connected disabilities, they will help and should also be attached to the IU application.

Note: Your service-connected disability(ies) must be the sole reason for being unable to work. If there is any non service-connected disability(ies) involved, then a physician will need to make a statement as to why the non service-connected disability(ies) are a non factor in you being unable to work.

Independent Medical Opinions by your private physician:
An Independent Medical Opinion (IMO) from a treating physician is in many instances a critical part of a veteran’s disability compensation claim. An IMO may sway the “benefit of the doubt” in favor of a veteran’s claim, or it may actually be the missing ‘link’ or nexus in a claim. When a veteran asks his or her physician to compose an IMO, there are a couple of things that should be noted in it. One of most important things that should be done and mentioned in the IMO is that the medical professional has reviewed the entire medical record including the veteran’s SMR’s. The medical professional should also state his or her area of expertise and additional training. For example, if the doctor is board certified in radiology, they should state that; especially when rending any comments in regards to radiological film studies. Also, it is very important that the physician give their rational as to why they have come to a certain conclusion. The physician, when giving his/her rational, should also cite any relevant medical literature that may support the findings. By doing all of this, the IMO becomes probative. There is also certain language the physician needs to use when opining whether or not the disability(ies) at hand is/are related to the veteran’s service. The following phrases are from the Department of Veterans Affairs “Clinician’s Guide for Disability Examination;”

"is due to" (100% sure)
"more likely than not" (greater than 50%)
"at least as likely as not" (equal to or greater than 50%)
"not at least as likely as not" (less than 50%)
"is not due to" (0%)

The phrase “at least as likely as not” is the legal phrase that is needed for VA to award service-connection for a particular disability based on the “Benefit of the Doubt” when an IMO should be the deciding factor in the evidence of record.

Note: You shouldn’t send your regional office any medical articles printed from the internet. They only pertain to the general population and aren’t afforded very much weight when they are being evaluated by the decision maker. The VA needs something from a doctor that states your disability(ies) are related to your service, not something meant for the general public.

Reasonable Doubt rule:
The Reasonable Doubt rule is one of the most important liberalizing rules that VA uses to grant veterans benefits and is defined under 38 CFR, §3.102. The Reasonable Doubt rule means that when there is an equal balance of evidence for and against the claimant, that the claimant be awarded there claim. This is just like in baseball as the "tie goes to the runner." Keep in mind this doesn't mean that just because there is ten pieces of evidence for your claim and 10 against that you will be granted your claim. It means that after consideration by the decision maker at VA, they have weighed the evidence and in their judgment there is an equal balance, then they must resolve reasonable doubt in the claimants favor. It also doesn't mean that if, for example, there is 5 pieces of evidence in favor of a claim and only one against, that a claim will automatically be granted because there is a preponderance of evidence (meaning more evidence in favor of the claim than against) in your favor. The decision maker must still weigh the probative value of each piece of evidence and determine the weight of each piece in relationship to each other and the claim, and then reach a decision as to whether there is a balance of evidence for the claim and against the claim based on the weight given to each of that evidence.

Note: The resolution of the Reasonable Doubt doctrine can not be the basis for a Clear and Unmistakable Error (CUE). Since the Reasonable Doubt doctrine is based on Judgment made by a decision maker, it cannot be a basis for a CUE.

Obtaining a copy of your Claims folder from VA:
The best way to obtain a copy of your claims folder (your C-file) from the VA is to write a letter to your regional office citing the 1974 Privacy Act. When doing so under the 1974 Privacy Act, the VA has, according to federal law, 20 days to respond.

I hope this guide as been able to help you understand how the VA operates and why they need certain things to award disability compensation benefits. The key to being awarded service-connected disability compensation is evidence. If you have evidence of the three portions of a valid disability claim, you’ll receive you deserved benefits.

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