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2 types of 100% Disability

http://www.attiglawfirm.com/blog/va-benefits/veterans-benefits-difference-between-schedular-and-extra-schedular-tdiu-total-disability-individual-employability/

Veterans Benefits: Difference between Schedular and Extra-schedular TDIU (Total Disability, Individual Employability)

By Chris Attig | Permalink
November 23rd in VA Benefits.

TDIU (Total Disability/Individual Unemployability) is a significant benefit for many Veterans. It allows the Veteran to be compensated as 100% disabled, even though the Veteran’s service-connected disabilities do not add up to 100%, when the Veteran’s service-connected disabilities prevent the Veteran from substantially gainful activity.

Most folks think of TDIU as one benefit. In fact, it is really two separate ways to get the same benefit of a 100% rating: Total Disability, or Individual Unemployability. In fact, it would be better to say that the benefit is “TD/IU” and not “TDIU”. Semantics aside, TDIU is a very powerful tool for a lot of Veterans, allowing them to live on a sustainable income when their service-connected conditions, illnesses, injuries and disabilities prevent them from working.

There are two kinds of TDIU: schedular (think “TD”) and extra-schedular (think “IU”). Don’t get me wrong – you still have to prove all the elements of the TDIU claim, whether schedular or extra-schedular. However, the “essence” of the analysis depends on whether you are claiming schedular or extra-schedular TDIU.

1) Schedular TDIU: By far, the most common type of TDIU. This benefit allows the Veteran to receive a 100% disability rating if he/she is unable to secure substantially gainful employment and has ratings that reach the following levels: a) a single service connected disability rated at 60% or more, or b) the result of 2 or more service-connected disabilities where the total rating is 70% and at least one disability is 40% or more.

The VA Regional Offices frequently fail to consider schedular TDIU even when these rating levels are achieved – so read your VA Ratings Decision carefully. This type of claim should be automatically considered by the VA Regional Office whenever the Veteran’s service-connected impairment ratings reach the above levels. The VA Regional Office may make you file a VA Form 21-8940 and will most assuredly play games with your Effective Date for this benefit, which you can read more about by clicking this link.

2) Extra-schedular TDIU. Books could be written on this topic – it is not one that is easily understood or applied by Veterans, VSOs, lawyers, advocates, and judges alike. There are a lot of Myths out there in the Veteran Community about how to get extra-schedular TDIU and what evidence you need to prove it.

It is, allegedly, the policy of the VA to rate all veterans as 100% disabled that are unemployable because of their service connected medical disabilities regardless of the percentage awarded. The VA requires that, for extra-schedular TDIU to be awarded, the evaluations assigned for the veteran’s service-connected disabilities must be inadequate, and the Veteran’s situation must present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Well, that’s a grandiloquent and melodramatic mouthful. But what does it mean?

Generally, the VA Regional Office is going to be looking for a unique set of circumstances that show that the Veteran is “unemployable” due to his or her service-connected injuries, even though the Veteran is not rated at high enough levels of disability for those conditions. This is a challenging claim to prove, will require expert opinions in most cases, and in many cases, can require a lot of patience from the Veteran, as it will frequently require perfecting a BVA appeal in the goal of securing a remand, or an appeal to the Court of Appeals for Veterans Claims (CAVC).

Here are some of the things that the VA Regional Office will look for when considering Extra-schedular TDIU:

a) Social Security Disability – receipt of these benefits is relevant information. SSDI requires that a person be unable to participate in “substantial gainful activity” in order to be considered disabled. (While this is a legal term of art that will require discussion of its meaning with an attorney, one thing is clear – “marginal employment” is NOT “substantial gainful activity” before the VA). If the SSDI is approved based solely on your service-connected disability, this is a very relevant factor for the VA Regional Office to consider. Often times, however, SSDI is not approved based on one condition, but a collection of conditions that preclude the Veteran’s ability to participate in a “substantial gainful activity”. These often leads to confusion for Veterans who believe that their SSDI was based on “Condition A” which is service-connected, but in reality it is based on Condition A and Condition B (which is not service connected). The VA may not, as stated below, consider non-service-connected conditions when evaluating extra-schedular TDIU. In quite a few cases, though, the Veteran may be overlooking the impacts that Condition A and Condition B are having on each other, and the question worth asking is this: can the non-service connected condition be service connected on a theory of aggravation or secondary service-connection? If so, the Veteran may not need to fight for extra-schedular TDIU at all, depending on the outcome of the secondary or aggravation claim.

b) The Veteran’s Education and Employment History. This is an area ripe for error by the VA. The focus of these factors is the totality of the Veteran’s current situation. Assume you are a lawyer and even though your service-connected conditions were impacting your work, you were employed on Monday. If you could not work on Tuesday because of the service-connected disability, the temptation is for the VA Regional Office to say that the situation is temporary, or you were just employed, or you are highly educated and can certainly find gainful employment. And, in theory, the VA Regional Office has a point; however, the focus of the extra-schedular TDIU evaluation is the totality of your present circumstances – not speculation on the path forward for the highly educated or long-employed Veteran.

c) Frequent Hospitalizations. If a Veteran is frequently hospitalized for his or her condition, and this interferes with the Veteran’s work or employability, the hospitalizations are a factor that should be considered by the VA Regional Office in a claim for extra-schedular TDIU.

d) Age may not be considered in the evaluation of extra-schedular TDIU.

e) Non-service-connected disabilities may not be considered in the evaluation of extra-schedular TDIU. However, my first question as a Veteran advocate is if the non-service connected disability is impacting the ability to work directly, or if the non-service connected disability is aggravating or secondary to the service-connected condition (resulting in reduced employability). If the latter situation applies, then I might ask why the Veteran hasn’t pursued service-connection of the currently non-service connected condition.

To secure extra-schedular TDIU, you are very likely going to need expert support – either a Vocational or Occupational expert evaluation and report, or a medical expert opinion from your treating physicians. The BVA has frequently held that the Veteran’s opinions and assertions that he/she is unable to maintain gainful employment due to his/her service-connected condition is not a competent medical opinion.

Lastly, neither the VA Regional Office nor the BVA have the authority to award extra-schedular TDIU – these claims must be referred to the Director of the VA Compensation and Pension Service for final decision.

The Attig Law Firm represents U.S. Veterans who have been denied benefits in their VA Disability claims for compensation due to injuries or diseases incurred during military service. The Firm currently represents peace-time and war-time veterans of all branches of the military, at all levels of the VA disability claim process (VA Regional Office, Board of Veterans’ Appeals, and the Court of Appeals for Veterans’ Claims). Contact the Attig Law Firm if you would like to discuss your claim for disability benefits before the VA.

No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans. The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, their may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog.

It is very important that we note that each and every Veteran’s claim is different. Just because we were able to secure substantial past-due benefits for one Veteran does not mean or imply that we will be able to do so for you. In some cases, we may not be able to secure you any financial compensation due to the facts of your particular case.

It is best to consult with a lawyer familiar with VA Disability claims to examine your particular claim. If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Disability attorney.

VA Disability attorneys at the Attig Law Firm, PLLC, represent Veterans in their VA Disability Claims – not only in Texas, Arkansas, Oklahoma, and New Mexico – but in VA Disability Claims all around the United States, Puerto Rico, and even overseas Veterans in their claims for disability compensation from the Department of Veterans Affairs.

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purpleheartoklahoma
Lawton, OK
United States
ph: 580-583-6417
brucedwyer@sbcglobal.net