Using Your Disabilities To Prove Unemployability To VA
You may be familiar with VA individual unemployability claims if you are a veteran who is no longer able to work. If not, you should read some of our previous articles where we talk about the basics for a VA individual unemployability claim. You can also learn what benefits you may be able to receive if you are successful in your VA individual unemployability claim, also known as IU, temporary disability based on individual unemployability, and TDIU.
In this article, we want to delve a little deeper into exactly what evidence VA is looking for and what you must prove to be successful in winning VA individual unemployability benefits.
The VA requires the following criteria be met in order to be considered for TDIU:
- The applicant must be a veteran.
- The veteran must have one service connected disability rated at 60%, OR two or more service connected disability ratings with a combined rating of at least 70% (in which one disability is rated at 40% or more.)
- The service connected disabilities are the reason the veteran cannot maintain substantially gainful employment.
Note that there is an exception to requirement #2; VA can consider you for VA individual unemployability if you do not meet the 60% or 70%/40% test, but for most claims you will want to meet these criteria to have your best shot at winning. In other words, if your service connected disabilities are not severe enough to rate at those levels, your chances of winning VA individual unemployability are probably fairly slim.
What I want to focus on in this article is requirement #3 – the link between your inability to work and your service connected disabilities.
Only Your Service Connected Disabilities Count in Your VA Individual Unemployability Claim
It is not enough to show that you are a service connected veteran and are unable to work. You must show that your inability to work is related to your service connected disabilities. You must show a link between the two. If you don’t, VA will likely deny you a 100% rating based on VA individual unemployability.
Think of it much the same way as nexus when making a claim for service connection. There, it’s not enough to show an in service event and a current disability; you must also have evidence that the current disability is related to the in service event.
You Want to Show the Full Effects of Your Service Connected Disabilities in Making Your VA Individual Unemployability Claim
I said above that you need to show a link between your service connected disabilities and your inability to work. To maximize your chances of winning VA individual unemployability, you want to make that link as strong as possible. You will want to determine each and every limitation that you have as a result of your service connected disabilities. You will want to get either lay or medical evidence, depending on the particular disability, to show VA that you really do have these limitations.
Remember that the person deciding your claim probably does not have a great deal of familiarity with the particular disabilities you have. They are not medical professionals. The only familiarity they probably have with your particular type of disability is what they have learned when reviewing the claims of other veterans. Don’t assume they know. Tell them explicitly. Let your family and doctors tell them, too.
Give them details how each and every service connected disability affects your daily life. You may explain how it affects you from the time you wake up until you go to bed at night, and then also how it affects you while you try to sleep (if it does). The idea is to paint a picture that makes it clear that you are unable to work because of the service connected disabilities.
You May Need to Address Your Non-Service Connected Disabilities to Strengthen Your VA Individual Unemployability Claim
So far, we’ve been talking about service connected disabilities. But, you may or may not have considered another important variable in the context of your claim for a 100% rating based on VA individual unemployability. That is your non-service connected disabilities. You need to be aware of this to avoid a misstep that could kill your claim.
In case you haven’t figured it out yet, the person reviewing your claim at VA may be looking for a way to deny your claim. One way to deny a claim is to determine that the service connected disabilities are not really all that bothersome or limiting for you. If you have done your homework as I talked about above, you will make that hard for them to say with a straight face.
But, that just means they may move on to Plan B, which is to blame your inability to work on disabilities that are not service connected.
If you do have disabilities that are not service connection, you need to decide on the appropriate strategy to prevent VA from denying your claim for VA individual unemployability based on these unrelated disabilities.
If you have any disabilities that you know should not be service connected, these should all be approached in one of two ways. The first step is to determine whether VA is even aware of these other disabilities. Don’t assume they don’t know simply because you did not tell them.
VA will have most if not all of your medical records. Many doctors list all of your ailments – even the ones they are not treating. So, if you go to an orthopedic surgeon for a back injury that is service related, that surgeon’s records are likely to have information on high blood pressure, heart disease, or other conditions they are not necessarily treating. Also, look back to see what you may have said in any documents you filed with VA.
If VA does not have information about these other disabilities, one approach is to ignore them also. Instead, focus on your service connected disabilities and why those prevent you from working.
If VA does know about these disabilities unrelated to your military service (and again, it is probably best to assume they do), you probably can’t avoid addressing these disabilities. In that situation, your strategy should instead be to minimize the effects these unrelated disabilities have on your ability to work.
How do you do that? It will be much the same as how you prove the limitations caused by your service connected disabilities. You will gather medical statements, lay statements, and maybe even a vocational expert opinion that the effects of these unrelated disabilities are not really that bad. In other words, yes, you have these disabilities, but they do not prevent you from being able to work. Between these three sources of evidence – medical lay, and vocational – you should be able to paint a picture showing that you would still be working if you only had to contend with your non-service connected disabilities.
As we have said previously, VA individual unemployability claims can be tough. So, you need all the favorable evidence you can muster when pursuing one of these claims. While emphasizing the severity of your limitations is helpful, it is also a good idea to have VA consider the effects of as many disabilities as possible.
That is even more true if your disabilities create limitations that are distinct from one another. For example, if you have limitations due to service connected PTSD and could then service connect a back injury, you would have an entirely new set of limitations that limit employment opportunities.
When you are considering whether you have additional disabilities that could become service connected, don’t forget about secondary service connection and aggravation of otherwise non-service connected disabilities. These are both powerful ways to win service connection when a direct connection is not possible.
So, if you have disabilities that are not service connected but possibly should be, you must decide whether it is advantageous to pursue service connection of those disabilities.
Sounds like a no brainer, right? The more the better in terms of winning VA individual unemployability.
Unfortunately, it is not quite that easy.
The real truth is that trying to include more disabilities can be a risky proposition. Win service connection, and your claim may be dramatically improved because you will have more disabilities that impact your ability to work. Lose service connection, and you just drew the VA’s attention to disabilities that hurt your claim for VA individual unemployability.
Thinking Ahead Can be Key in Proving VA Individual Unemployability
One way to minimize this risk is to approach your claim with a long term, well thought out plan. Proving your VA individual unemployability in a series of steps may make it less of an all-or-nothing outcome?
How do you do this? First, focus on service connection. Don’t get into too much detail of the severity of your disability. If you win service connection, you will then have an opportunity to fight for the proper rating and present evidence of your limitations. If you lose service on connection, your VA claims file will not be filled with evidence of the serious nature of these non-service connected disabilities.
An Attorney Can Be Beneficial in VA Individual Unemployability Claims
We are just scratching the surface here in terms of the nuts and bolts for a successful VA individual unemployability claim. Although VA disability law is supposed to be non-adversarial, these types of claims are especially tough. VA doesn’t hand out 100% TDIU ratings very easily.
I wrote an article recently about why a veterans disability attorney may be especially important in these claims. You can check that out here. If you have questions after that and would like some help figuring them out, please reach out to us for a free consultation. One of our passions is helping those veterans whose disabilities (yes, the service connected ones) prevent them from returning to the workforce.
Travis Studdard is an attorney who focuses on representing veterans in VA disability compensation claims. He regularly writes about issues that are important to veterans and their families.
You can subscribe to his Veterans Disability channel on YouTube.