often refer to Individual Unemployability as IU. The Individual
Unemployability Benefit is equal in every way to a 100% Schedular
The compensation is 100% and that dollar amount is equal to
both ratings. If the veteran is rated as 100% Schedular, he or she may work at any job they are capable of doing. The veteran who is rated as IU may not hold "gainful employment".
IU veteran is required to complete a yearly VA Form 21-4140 to verify
that there has been no employment in the previous year. Each Regional
Office seems to have its own way of delivering these forms, all too
often they don't deliver them at all. It is the veterans responsibility
to ensure that the 4140 is completed and mailed in on or about the anniversary of the award each year.
The veteran should download the form, print it and mail it in using certified mail, return receipt requested.
the 100% Schedular rating or the 100% IU rating may be
Permanent and Total (P&T). Either rating may be a temporary one with
future examinations scheduled.
Don't forget...you will find a lot more detailed information
about TDIU if you'll click right here.
What Is Individual Unemployability?
Individual Unemployability is a part of VA’s disability compensation
program that allows VA to pay certain veterans compensation at the 100%
rate, even though VA has not rated their service-connected disabilities
at the total level.
What Is the Eligibility Criteria for Individual Unemployability?
A veteran must be unable to maintain substantially gainful employment as
a result of his/her service-connected disabilities.
veteran must have:
One service-connected disability ratable at 60 percent or more,
Two or more service-connected disabilities, at least one disability
ratable at 40 percent or more with a combined rating
of 70 percent or
How Do I Apply?
Submit VA Form 21-8940, Veteran’s Application for Increased Compensation
Based on Unemployability to your nearest VA Regional Office.
Can I Work?
Veterans who are in receipt of Individual Unemployability benefits may
work as long as it is not considered substantially gainful employment.
The employment must be considered marginal employment.
Substantially gainful employment is defined as employment at which
non-disabled individuals earn their livelihood with earnings comparable
to the particular occupation in the community where the veteran resides.
Marginal employment is generally deemed to exist when a veteran's earned
income does not exceed the amount established by the U.S. Census Bureau
as the poverty level for the veteran only. See the U.S. Census Bureau's
What If I Don’t Meet the Percentage Criteria?
Special consideration will be given for veterans when the following criteria is met:
The veteran is considered unemployable due to a service-connected
disability(ies) but fails to meet the minimum percentage standards, OR
There is evidence of exceptional or unusual circumstances to impairment
of earning capacity due to disabilities (for example, interference with
employment or frequent periods of hospitalization)
Note: Veterans may have to complete an employment questionnaire (VA Form
21-4140) once a year in order for VA to determine continued eligibility
to Individual Unemployability.
I’m applying for 70% TDIU. Once I’ve received my award, how can I get the TDIU benefit to become a more permanent 100%?
asked a question I receive dozens of time each month. The TDIU benefit
is perhaps the least understood of all VA disability compensation
Total Disability compensation may be achieved on two
separate paths at VA. You may be rated as 100% disabled via The Schedule
For Rating Disabilities or you may be rated as 100% disabled via the Individual Unemployability path.
“schedular” rating might be one where you have a condition that is
required to have a 100% rating, for example, you’ve had an AICD
implanted to control erratic beats of your heart. The path to this rating could be that a Vietnam veteran develops DMII.
in the Vietnam veteran is presumptively rated as service connected. If
that veteran then develops heart disease, the heart disease can easily
be proven as secondary to the DMII, thus the heart disease becomes a secondary service connected condition.
that heart disease then develop into a condition that medically
requires the implanting of an AICD device, the veteran is rated as 100%
disabled by the schedule. Notwithstanding the ratings for DMII and
heart disease, the implanting of an AICD is rated as a 100% disabling
Interestingly, the schedular rating has nothing to do
with a veterans employment. The fact that there is a service connection
to the implanting of the AICD device is the only requirement. That
veteran who receives that rating may then become employed with no fear
of losing the rating. Some people who receive such devices do choose to continue to work at gainful employment.
there are veterans who have a number of lesser conditions with various
ratings but because of the Combined Ratings Table or “VA Math”, their multiple conditions and ratings don’t add up to 100%.
recognizes that many of these veterans, although they are not rated as
100% disabled, aren’t able to seek and keep gainful employment. In VA
terms, they are unemployable due to their service connected
disabilities.VA then looks carefully at these individuals as individuals
to assess how much of an effect the combination of service connected
disabilities has had on their ability to earn an income and work as
it is apparent that the service connected disabilities keep the veteran
out of the work force, then VA must assign the rating of 100% disabled
due to Individual Unemployability. It’s worth noting at this point
that to be rated as 100% unemployable by the VA system, all the
disabilities considered must be service connected.
markedly different than the Social Security system and the SSDI benefit.
In the SSA system, one must show that he or she can not reasonably hold
employment due to any mix of disabling conditions. To achieve a 100%
rating in the VA system, all disabling conditions that are to be
considered must be established as being caused or contributed to by military service.
are requirements when VA considers the TDIU benefit. The veteran must
have a rating of at least 60% with a single condition rated at 60% or
greater or the veteran must have a rating of 70% with at least one of the underlying ratings at 40%.
those requirements aren’t met precisely the Regional Office may then
forward the application for TDIU to VACO for a decision by the C & P
Director. If it is then determined that this individual veteran will
not be reasonably able to achieve gainful employment in the future, the
Director may assign the TDIU benefit.
Either the schedular or the IU
benefit may be temporary or it may be permanent. If permanence is
awarded for either a schedular or an IU 100% rating, the statement,
“Basic eligibility under 38 U.S.C. Chapter 35 is established from
[date].” is required.
worth noting that many decision letters don’t include either this
statement or any other hints of the permanence of the award and the
veteran is left wondering. The alternative statement used is “future
examinations are scheduled” meaning that the award is temporary or “no
future examinations are scheduled” indication that the award is permanent.
word “permanent” is a misnomer when used by VA. The VA may elect at any
time to review any claim to render a proposal of changes to the claim.
There is no protection of a 100% rating until the rating has been in place, uninterrupted, for 20 years.
than the path to achieve the benefit and that the IU rated veteran can
not hold gainful employment, the Schedular 100% rating and the IU 100%
rating are exactly the same. The monthly benefit amount is equal
across the board. If the rating is said to be permanent by VA all
benefits for dependents are exactly the same.
I recommend that
veterans do not attempt to change an IU rating to a schedular rating, a
practice I see a lot of. To achieve the 100% schedular rating does not
change any benefit that the veteran may receive. Any attempt to modify
the IU status to a schedular status does open one’s folder for review
however. This can be a hazardous maneuver as any time the folder is
opened for review, the VA will first look at opportunities to lower the
rating. I’ve communicated with a number of veterans who have
attempted to have their IU switched to schedular and who find themselves
staring at a letter proposing to reduce their benefit significantly because of “improvements” to their conditions.
also confronted veterans who wish to trade the IU rating to a schedular
rating so that they are able to preserve their 100% rating as they
return full time to gainful employment. There are a few of us who
would gleefully game the system and milk out dollars by deceiving VA
about the extent of their disabling conditions. I do not condone such
activity personally and I’m aware of the many checks and balances that
VA has in place to prevent such fraud.
The TDIU Training Letter
is one of the best I’ve seen. It is comprehensive and provides a number
of good examples of how this works. I’m also including another
explanation of the IU benefit via a link below. While this dates from
2005, it continues to be relevant as Daniel Cooper describes the benefit
to members of Congress.
You are advised to pay close
attention to details in this training letter. For example, the
requirement to complete VA Form 21-4140 is reinforced here.The VA Form
21-4192, “Request for Employment Information in Connection with Claim
for Disability Benefit” is required but it’s noted that, “A TDIU
evaluation should not be denied solely because an employer failed to
return a completed VA Form 21-4192.”Perhaps most significantly,
“However, as a result of the Rice decision, a request for TDIU,
whether specifically raised by the Veteran or reasonably raised by the
evidence of record, is no longer to be considered as a separate claim
but will be adjudicated as part of the initial disability rating or as
part of a claim for increased compensation.”
Joseph Valencourt Jr. served as a combat medic in Vietnam in the early 1970s.
"It's really hard to talk about," Valencourt said.
returned stateside in 1972 with a host of parting gifts from the
Southeast Asia nation, including Agent Orange exposure and Hodgkins
lymphoma. In the midst of fighting these battles for his life, his
unemployability benefits were reduced, his son says, because he failed
to fill out a Veterans Administration form that went to the wrong
"At the time when they took away his benefits, he was a
hospice patient," son Matthew Valencourt said. "So it doesn't really
seem fair to me that they would expect someone in that condition to be
able to work, and yet they take away his unemployability benefits just
for not filling out a form."
my IU has been taken away and the VA says I did not send in
They said they mailed it but it went to my previous address so I never
recieved it. The last form before this one I recieved at my current
address. The va says the action is already taken. how can I recover from
Unfortunately, the responsibility to ensure the form is timely completed
is yours. If you moved and didn't have mail forwarded or notify VA in
writing using certified mail, you made a serious mistake. If you did all
that and VA erred anyhow, you should have downloaded a form, completed
it and mailed it in.
Changing a mailing address isn't easy with VA and
be aware that some paper may not get to you as it should.
Even before they lower the benefit they will give you advance notice of
"adverse action" so that you can get it straight before you've actually
lost the benefit.
If VA has reduced your benefit your only option now is to
must write to them using a formal letter and
explain that for some
reason you didn't receive the 4140 form. Be sure to enclose a 4140 that
covers the period in question. It may take time but you'll likely get
the IU benefit back with little fuss.
I advise IU veterans to keep it in mind that on or about the anniversary
of their IU award they owe the VA a 4140 form. I usually complete 2
each year just to stay safe.
I hate to bother you with this question but nobody I know seems to know
the answer. I am "permanent and total" (their letter to me) by way of IU
benefits. I was reading the site and ran across where you stated that
the "form" to verify employment or lack of has been re-started. I
received no such request from the VA at the end of the year and was
wondering if I should find out about or do anything about this
Stuff like this always makes me very nervous. What would be your take on this? As always, thanks for your time.
I'm happy to hear that you're paying attention and thinking about these
things. Smart veterans ask questions and learn all they can about the
wide range of benefits they've earned. Answering your question is no
bother, I enjoy being able to help. I don't always know the answers but
this time I do.
A little background seems appropriate...
TDIU or Total Disability, Individual Unemployability ratings are in
every way equal to "schedular" ratings of 100% Permanently & Totally
disabled. The TDIU rating allows VA to assign a 100% benefit even when
the veterans schedular % of disability doesn't add up to 100. It's
recognized that some ratings lower than 100% will substantially
interfere with the veteran achieving and holding on to gainful
employment. Since the VA system is all about employment, if you can't
work due to service connected conditions VA sees you as 100% disabled.
Many years ago someone realized that there may be vets who would receive
the TDIU benefit and then return to work and game the system. While the
100% schedular benefit doesn't restrict gainful employment, a veteran
can't receive an "unemployable" benefit and at the same time be working a
To keep track of who was or wasn't
working, the VA decided to simply ask vets to verify that they hadn't
worked in the last year preceding the receipt of the 4140 form. The 4140
is a statement saying that the vet hasn't (or has) worked. Falsifying
or not completing and returning the statement carries penalties up to
and including loss of the benefit.
The statement should be sent to you and returned by you on or about the
anniversary of your benefit award. My own award came about in June so
each June I should get the letter.
We realize that we're dealing with VA though so we have learned that
whether or not we receive the 4140 on time or at all is anybody's guess.
Each regional office has its own way of getting those things out the
door and most often that means you won't get it at all or it won't be
timely delivered to you. For years Regional Offices had decided that the
forms were largely a waste of time and didn't bother with them. Then it
was decided that they are required by law so now we do receive them but
as always, not efficiently.
It has often happened that a veteran
doesn't receive the 4140 but months later will receive a notice of a
proposed adverse action...VA will threaten to take the TDIU benefit from
the vet because he didn't complete a form he never knew he should have,
but didn't, receive.
Yes...VA won't mail you the 4140 but since you didn't timely return it...they will propose to reduce your benefit.
Note that I said "propose". The proposal letter is only a notice of a
potential problem, it isn't a decision to modify the benefit. If the vet
should ever have that happen, it's usually pretty simple to clear up by
completing a 4140 and enclosing it with a letter to the Regional Office
explaining that the veteran didn't receive any forms from that RO.
I recommend that every veteran who receives the TDIU benefit should
develop his or her own calendar and download and mail in the 4140 the
1st of the month of their award anniversary each year. I do that myself.
In fact, I mail in a 4140 at the 1st of each new year and then again in
June. I figure that if one is misplaced the other may cover me.
As with all communications to your VA, I strongly recommend that the vet
use only certified mail, RRR to send the 4140. Keep the receipt in your
personal VA files for future use if it should become necessary.
It's worth mentioning that if you certify to VA that you have not held
gainful employment but that isn't true, you're probably going to regret
it. While VA accepts your word on the 4140, they also will cross
reference the veteran to state and federal tax agencies and if you or an
employer are reporting that you have a taxable income, you will be
investigated and you may have to return all the payments that VA
considers were made in error. If you're one of the few who have an
earned income but you don't report it for tax purposes, you have issues
far beyond the 4140 forms.
As a final comment I'll tell you that I get a lot of mail asking me how
one may take the TDIU benefit over to the 100% schedular benefit and
avoid all this? My answer is always the same: You don't want to do that.
If you received a TDIU benefit, trying to carry it over to a schedular
rating will mean that your file will get a thorough review. Any time
that happens VA will first look for a way to reduce the benefit overall.
That can open up a can of worms you don't want to deal with.
If the veteran wants to convert TDIU to schedular so that he can return
to gainful employment, that veteran is likely gaming the system and I
always disagree with that.
The Speech - 2005
One of the best definitions of the Individual Unemployability benefit
(TDIU or 100% IU) is in a speech given by Danial L. Cooper,
Undersecretary for Benefits in 2005.
If you'll take the time to carefully read his detailed explanation of
the benefit, you'll understand why there is such a thing and how it may
be achieved. This is what he had to say;
October 27, 2005
Mr. Chairman and members of the Committee:
Thank you for the opportunity to review
with you the issue of Individual Unemployability (IU). I will discuss
what IU is, its history, the criteria used to determine eligibility, the
number of veterans receiving IU benefits, the May 2005 study by the
Inspector General (IG) of state variances in average annual
compensation, and other issues.
I am pleased to be accompanied by Ms.
Renée Szybala, Director of VA’s Compensation and Pension Service, and
Ms. Judith Caden, Director of VA’s Vocational Rehabilitation and
What Is IU?
Individual Unemployability or IU is the
basis on which the Department of Veterans Affairs pays service-connected
disability compensation at the rate payable for a 100-percent
evaluation to qualified veterans with combined evaluations that are less
than 100 percent. Regional office decision-makers assign IU ratings
when veterans meet minimum combined evaluation criteria and, in the
judgment of the rating official(s), are unemployable due solely to their
In exceptional circumstances, regional offices may refer cases that fail
to meet the minimum combined evaluation criteria to the Director of the
Compensation and Pension Service for consideration of an IU rating.
Authority Section 1155 of title 38, United States Code, charges the
Secretary with responsibility for developing and applying a disability
rating schedule that is based, “as far as practicable,” upon the average
impairments of earning capacity resulting from service-connected
Recognizing that the intent of the rating schedule is to fairly
compensate veterans for their disabilities to the extent to which they
impair earning capacity of the average veteran, the schedule
none-the-less cannot always adequately compensate an individual veteran
in his or her particular circumstance. To address the inevitable
situations where the schedule does not adequately address a particular
fact pattern, the schedule adopted by the Secretary provides both IU and
In 1925, the Schedule for Rating
Disabilities provided the first definition of total disability. Total
disability was defined as an impairment of mind or body that is
sufficient to render it impossible for the average person to follow a
substantially gainful occupation. In 1934, total disability was expanded
to provide that total disability ratings may be assigned without regard
to the specific provisions of the rating schedule when the veteran is,
in the judgment of the rating agency, unable to follow a substantially
gainful occupation as a result of the veteran’s disabilities.
To be eligible for consideration for IU benefits, the schedule required
that a veteran have a single 70 percent evaluation or, if the veteran
had multiple service-connected conditions, that the minimum combined
evaluation be 80 percent with at least one disability considered 60
In 1941, the minimum requirements for consideration for IU entitlement
were revised to today’s standard of 60 percent for a single disability
or a combined 70 percent evaluation with at least one 40 percent
Throughout the rating schedule, a 60 percent evaluation or higher
reflects significant disability. A 40 percent evaluation assigned to a
condition generally reflects a serious handicap. Therefore, when
multiple service-connected conditions are involved, the higher 70
percent minimum combined evaluation is reasonable to allow for the
interplay of multiple disabilities.
The 1945 rating schedule established that age was not to be considered a
factor in evaluating service-connected disability, and that entitlement
to IU could not be based on advancing age or additional
non-service-connected disability. Under VA regulations, if a veteran’s
earned 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, currently $9,570, the veteran is only marginally
employed, and marginal employment does not qualify as substantially
Also, the U.S. Court of Appeals for Veterans Claims held in Faust v.
West that employment that provides annual income exceeding the poverty
threshold for one person, irrespective of the number of hours or days
actually worked and without regard to the veteran’s annual earned income
prior to the award of the IU rating, constitutes "actual
Number of IU Beneficiaries
The number of veterans rated totally
disabled based on IU has more than doubled in the past six years from
97,275 veterans in 1999 to over 221,000 veterans today (2005). There is no
single clear explanation for the increase in IU ratings over the last
six years. However, the rise has occurred concurrent with other
significant changes. Since September 30, 1999, the number of veterans
receiving compensation has increased from 2,252,980 to 2,636,979 at the
end of fiscal year 2005. This increase of 383,999 veterans represents a
17 percent rise in the number of veterans receiving compensation.
There has also been an increase in the average combined disability
evaluation over the same period. At the end of 1999, 57 percent of all
veterans receiving compensation had combined evaluations of 30 percent
or less. Today it is 46 percent. The percent of veterans with combined
evaluations of 60 percent disability or more has increased from 17
percent at the end of 1999 to the current 29 percent. An interplay of
advancing age, diabetes, and various presumptions of service connection
for cancers associated with herbicide and radiation, as well as a
significant increase in the number of veterans awarded
service-connection for PTSD, account for a substantial portion of the
increase. Recent court decisions have also had an impact on IU ratings.
For example, in 1999, the U.S. Court of Appeals for Veterans Claims in
Norris v. West held that VA must infer a claim for IU if the veteran
files a claim for increased disability, meets the schedular minimum
combined evaluation criteria, and there is evidence of inability to
engage in substantially gainful employment due to service-connected
Interplay with Vocational Rehabilitation and Employment (VR&E)
In its September 1987 report, “Improving
the Integrity of VA’s Unemployability Compensation Program,” the then
General Accounting Office (GAO) recommended that VA revise its
regulations to require that all veterans applying for a total disability
rating based on IU be referred for a vocational rehabilitation
evaluation. VA does not currently require an employment assessment by
VR&E program staff as part of the IU entitlement determination. If
the Secretary decided to require an employment assessment in connection
with determining a veteran’s entitlement to IU, VA would first
promulgate regulations defining the scope, purpose, and criteria for
conducting such an assessment, and the manner in which VA would
implement such assessments. A veteran’s participation in a program of
rehabilitation, education, or training does not preclude a total
disability rating based on IU.
Veterans with compensable service-connected disabilities, including
those with IU ratings, may be entitled to receive vocational
rehabilitation benefits under the VR&E program (chapter 31, title
38, United States Code). VA also may not deny a veteran’s IU claim on
the basis that he or she is participating in a Veterans Health
Administration (VHA) program of therapeutic and rehabilitative services,
or consider therapeutic and rehabilitative activities as evidence of a
veteran’s ability to secure or follow a substantially gainful
occupation. Our regulations allow a veteran receiving IU benefits to
work 12 consecutive months in substantially gainful employment before
any change is made in the IU determination.
A total disability rating based on IU can
result in eligibility for additional benefits for a veteran’s
dependents and survivors. Educational benefits for the veteran’s spouse
and eligible children are available under the Survivors’ and
Dependents’ Educational Assistance Program (title 38, United States
Code, Chapter 35). The Civilian Health and Medical Program of the
Department of Veterans Affairs (CHAMPVA) provides reimbursement to
eligible dependents for most medical expenses, provided that they are
not also eligible for health care benefits provided by the Department of
Defense. To be eligible for both of these benefits, the veteran’s IU
determination must be considered permanent. Permanency for eligibility
to Chapter 35 and CHAMPVA requires that there not be a future
In most cases, to be considered for IU
benefits, a veteran must apply. However, in the Norris case mentioned
earlier, the court held that a veteran need not apply for IU for a claim
for IU to be inferred. Thus, VA is required to consider the issue in
certain circumstances, even if the veteran did not explicitly apply for
an IU rating. Recent guidance to the field directed that, once an IU
claim is inferred, an application must be sent to the veteran for
completion in order to obtain the essential information requested on the
application form. The form asks the veteran to furnish an employment
history for the five-year period preceding the date on which the veteran
became unemployable, as well as from that date to the date of
application. As part of the development of IU claims, field stations are
also required to solicit information from each employer during the
12-month period preceding the date the veteran last worked. The
employer is asked to provide information concerning the veteran’s
employment history including the date of employment, the type of work
performed, and if the veteran is not currently working, the reasons for
termination of employment.
Role of the Medical Examiner
If the rating official determines that a
medical examination is necessary to determine whether a veteran is
entitled to a total disability rating based on IU, an appropriate
examination or opinion request is submitted to a VHA medical facility or
our contract examination provider. Medical examiners follow the
appropriate worksheets to perform a complete and adequate examination
for rating purposes, answering all questions and providing opinions as
requested. A diagnosis is to be provided for every condition listed on
the examination request. The medical examiner should describe the
disability’s effect on the veteran’s daily activities and ability to
work. For IU claims, the examiner should also obtain the veteran’s
occupational history (i.e., type of occupation, employment dates, wages
for last 12 months, and detail any time that was lost from work in past
Continued IU Eligibility
Once a veteran is awarded IU benefits and
until he or she attains age 70, the veteran is required to submit an
annual employment certification. This procedure was resumed in
September after having been suspended for approximately six years. The
veteran must list all employment for the preceding 12-month period. VA
uses the certification to verify continued entitlement to IU benefits.
Failure to return the form will cause VA to send the veteran a
contemporaneous notice of reduction of the monthly benefit payment to
the rate justified by the underlying rating. VA may schedule a
reexamination for any veteran when VA determines there is a need to
verify the continued existence or current severity of a disability.
Generally, VA requires reexamination if it is likely that a disability
has improved or if evidence indicates that a disability has materially
changed or that the current rating may be incorrect. Periodic future
examinations are not requested if the disability is unlikely to improve,
if symptoms have persisted without material improvement for a period of
five or more years, where the disability is permanent in character, or
in cases where the veteran is age 55 or older.
After a veteran has received compensation at any level of disability for
20 years, to include total disability benefits based on IU, that
compensation rate is protected.
Veterans receiving IU benefits are subject to VA’s annual income
verification match (IVM). The IVM uses Internal Revenue Service (IRS)
and Social Security Administration (SSA) income records to verify that
IU beneficiaries remain below the earnings threshold for entitlement to
IU benefits. Reviews of VA Claims Processing Related to IU
Former Secretary Anthony J. Principi, in
response to media articles about state-to-state variance in average
compensation payments to veterans, requested that the VA Inspector
General (IG) study the payment variance issue. The IG found that
payment variance was affected by several factors including demographic
factors and representation by veterans service organizations, as well as
the incidence of PTSD and the subsequent award of IU benefits for that
condition. The Government Accountability Office (GAO) also issued a
report in 2004 pointing to a need for increased analysis of the
consistency of decision-making across regional offices. GAO is
currently conducting a study of IU benefit decision-making. Based on the
preliminary findings from these reviews, as well as a significant
increase in the number of IU case referrals received in the latest IVM
with IRS and SSA, we have been analyzing our existing IU procedures and
regulations to determine if changes are needed. As discussed earlier,
we have reinstated the annual employment certification for veterans
receiving IU benefits.
We have also reinforced existing procedural and evidentiary guidelines
for IU determinations through conference calls with our field stations
and at our recent Veterans Service Center Managers Conference. We will
continue to work to provide additional training for our employees, and
to identify ways to strengthen and clarify our long-standing procedural
requirements and ensure the integrity of this important benefit.
The IU benefit has a long history. It fills a critical gap when the
rating schedule fails to fully address the impact of disability in a
specific veteran’s circumstance. We believe that during this period of
conflict and danger for our country, IU continues to be an essential
tool in serving America’s veterans and fulfilling the country’s
commitment to them. We at VBA are fully cognizant of this as we work to
ensure those who have served this nation are fully compensated for
their injuries and assisted in returning to participation in society to
the maximum extent possible permitted by their injuries.
The purpose of this Fast Letter is to revise and clarify VA procedures
relating to claims for total disability ratings based on individual
Overview of Changes
* VA will no
longer presume a claim for TDIU is a claim
for increase in all
service-connected disabilities. As part of a substantially complete
application for TDIU, VA will require that the claimant with multiple
service-connected disabilities specify atleast one disability that he or
she believes causes the unemployability.
* VA will consider the
Veteran’s specification of the disabilities that he or she believes cause
unemployability to be claims for increased evaluation for those
* VA will require the claimant complete and submit VA Form 21-8940,
Veteran's Application for Increased Compensation Based on Unemployability to substantiate the claim of TDIU.
* VA will administratively deny TDIU claims if VA requests, but the Veteran does not submit, required
forms or evidence.
has the flexibility to request either condition-specific Disability
Benefits Questionnaires (DBQs) or a general medical DBQ when VA
determines that examinations are needed to decide the claim.
will interpret the schedular requirements in
38 C.F.R. 4.16(a) to mean
that acombined 70 percent rating is only required if no single
disability is rated at
60 percent disabling
Comments from a veterans law attorney...
Thank you for posting the new Fast Letter 13-13
TDIU claims. In presenting seminars to
VSOs, CVSOs, other advocates,
and attorneys across the country over the past year, I have been amazed
that no one - not a single person - expressed any knowledge of the Rice
case, much less had used it to appeal a wrongful denial of TDIU
because the vet had not filed the correct form. To the contrary,
several experienced advocates questioned (some politely, others less so)
whether I had misread the case!
In my practice, I estimate that
about half the TDIU
denials that I have seen in the past year were in
direct conflict with Rice and the vet had been wrongly denied TDIU or an
improper effective date assigned. As the
Rice case was decided in
2009, issuance of the Fast Letter -- even if 5 years late -- should at
least make a dent in the denials from ignorance of the law.
in my view, the direction taken by VA in the Fast Letter is
fundamentally flawed. As noted in several written testimonies submitted
in support of the recent Congressional Hearing on Veterans' Appeals,
VA's response to almost every issue is more complexity. Here, the Rice
Court told VA it had to adjudicate TDIU whenever the record supported a
possible award without the necessity of a specific claim or form
submittal. Seems simple enough - during adjudication of ratings that
upon award reach the 60% or 70% minimum rating requirement for TDIU,
check the record for the other requirements and make a decision on TDIU
VA's response, however, is to (yet again) add an additional
layer to the process by requiring the
submittal of a form to obtain
TDIU. Now, I recognize
that the form is not required to initiate a TDIU
claim, but the form is still required to obtain an award. So, here
In an attempt to shave some time off the process by
requiring the veteran to identify specific disabling conditions as
preventing employment (in itself not necessarily a bad idea), VA now
opens up at least 5 more potential causes of an appeal: (1) VA fails to
send the form; (2) VA sends form to wrong address; (3) Vet fails to get
form; (4) Vet returns form, but VA does not
put form in correct
file/loses form; and (5) VA decides vet filled out form improperly/too
late. This list does not include the other form-related issues that
plague the VA system, such as using the "wrong form" or an "outdated"
version of the form. Each of these is bound to happen,
as it does in
every other "form" based VA process.
Each will stimulate even more
appeals and litigation.
Oh well, good for the lawyer business (sadly) . . .
Attorney Rosinski hits the nail squarely on the head
when he says, "VA's response to almost every issue is more complexity."
That has been the overwhelming response in my mailbox to the distribution of FL13-013.
Veterans, attorneys, VA employees and other advocates have all written
to tell us that it appears that VA is doing what it always
does...increasing the complexity of every hurdle that a veteran must
Professor Ridgway, in a submitted
comment to the hearing on 06/18/2013: "Why Are Veterans Waiting
"We have long passed the point of critical mass where
the sum total is too complex for adjudicators at every level to keep
straight, much less for untrained veterans
to understand. A better
appellate system — and a
better adjudication system in general — needs
to move away from trying to deal with millions of veterans with millions
of rules, and instead focus on finding the smallest number of rules
that will fulfill the goal of
creating a truly veteran-friendly system
that is capable
of delivering timely and accurate results."
A truly veteran-friendly system without the millions of rules for
millions of veterans seems to be a vision that
we can never achieve. As
VA continues to add complex new processes and procedures the outcome
will only be more work for appeals lawyers.
With the VA announcements of an intent to hire more
VA lawyers and the
ever increasing numbers of new
rules, new forms and new and unworkable
twists and turns in regulations, VA may claim to reduce the current
backlog at the VA regional offices by shifting the burden to the appeals
functions at the BVA and the CAVC, and beyond.
If nothing else, it means more work for veterans law attorneys and
accredited agents as they try to help veterans to resolve the FUBAR that
VBA consistently creates.
I hope this finds you well, and can help many of your faithful
readers. I think our last communication was concerning the VA Caregiver
Program and how we had to appeal to the VISN to get approved.
This message is also about an appeal process, even though my new rating award letter states it is a new claim.
2008 when I was medically retired the VA gave me a 30% rating for my
right knee for a failed knee replacement with chronic weakness and
chronic pain. My overall rating was 90% and IU, TDIU was how they wrote
it was granted.
I appealed the 30% knee rating because it was
about 6 months later they did change the rating to 60%, and
my schedular rating to 100%.
After researching Veterans benefits
on several websites I
learned about the Bradley decision, concerning
the rate of Special Monthly Compensation S, or at the housebound rate,
and being eligible if one service connected condition could or was used
to determine IU, and then if the Veteran had other disabilities that
totaled up to 60% they would be eligible for
September of 2009 I wrote a letter to the RO about this decision, and
inquired if I met the criteria. I spoke with people from the RO on 2
separate occasions, and they assured me I did not qualify because more
than one rating was used to determine my IU rating, and since I was now
100% it was no longer an issue, and that I would have to have a 100%
rating to qualify.
So I began sending letters disputing the
answers I was being given, in fact about a year ago I copied the Bradley
and the new guidance for awarding SMC S claims based on IU,
or the ability to award IU. My argument has been that since the guidance
makes it very clear the one service connected condition would have, OR
could have qualified the Veteran for IU, any Veteran with one condition
rated at 60% does qualify for SMC S if they have other ratings that add
up to 60%, which I do.
I also have an appeal that is in the fourth year right now, for Rheumatoid arthritis.
Monday I was checking ebenfits, specifically th AB8 letter, and it
showed a change in my compensation amount that would be the amount for
SMC S. On Wednesday this week I recived a letter from the RO explaining
they had reviewed my claim and they did award me SMC S based on the
Bradley decision I had cited. I almost fell flat on my face. The next
day was a deposit for backpay that went back to the date of my
retirement, didn't even have to argue witrh them about that.
the letter Thursday explaining what they did, and they confirmed they
used the cited Bradley decision to determine
the SMC S and they found in
For all of your readers, I do apologize for the long
explanation, but I just wanted people to know that some times you have
to get a lot of No's before the girl at the dance says yes, or the
for you gals out there.
If you have a single rating of 60% or
more that could be used to award a Veteran IU, and an additional
combined ratings of 60% then that rating qualifies the Veteran for SMC.
I know that not many Veterans have the one 60% or more, but some have
the total knee replacements with the pain and weakness, some
severe injuries, some have PTSD ratings of 70%,
and there are many
If they have been told no, they do not qualify, have
them get a hold of the Bradley decision, and the guidance for awarding
SMC S based on the single disability that could be used to
Make a copy and send it to your RO with your
request for SMC S. And do
not stop until someone says yes.
Thanks for sharing this very important message. In fact, I was just about to publish a new "Jim's Mailbag" and I'll be using
your message...anonymously, of course.
I've often said that if the veteran has a well grounded claim, all that
is needed is the patience of a saint and the determination
of a junkyard
dog. You seem to have each of those qualities
and you've forced VA to
award you the benefits you earned by your honorable service to our
The Bradley decision is fairly well known among advocates. It's too
bad that the VBA staff who you were dealing with either didn't know of
it or intentionally withheld it from influencing your claim.
The underlying premise of the decision isn't hard to grasp; "The United
States Court of Appeals for Veterans Claims held in Bradley v. Peake,
22 Vet. App. 280 (2008) that for purposes of special monthly
compensation the statute did not limit a service-connected disability
rated as total to only a schedular 100 percent rating and the
regulation permitted a TDIU rating based on a single disability to
satisfy the statutory requirements of a total rating. Thus, in this
case, PTSD is considered a single service-connected disability rated at
The VBA makes mistakes. A lot of mistakes. One of the most prevalent
causes for the current backlog, and consistently ignored by VBA, are the
errors made at the initial level of the claims process. When clear
errors are made, the veteran will appeal. This uses excessive time and
millions of dollars of taxpayer money are wasted to fix the initial
It's unfortunate that not all veterans show your tenacity. I hear it
daily, "The process is too hard, I can't deal with VA." Those veterans
just give up. I don't understand that attitude myself. As you've shown,
the few hours that the vet may put in with some research and letter
writing can bring your claim to the appropriate level.
I agree with you. If you have a well grounded claim, "...do
not stop until someone says yes." It shouldn't be this way but it is. We play the cards we are dealt until we prevail. There's just no other way.