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Can Veterans Get Temporary 100% Compensation Rating While a TDIU Application Is Pending?

The Problem:  Waiting for VA to Process a TDIU Application When Another Agency Already Found You Disabled

We are often asked whether the VA has to assign a Temporary 100% Service-Connected Disability Rating while the VA is processing a veteran’s application for Total Disability Based on Individual Unemployability (TDIU).  This often comes up when another federal agency, such as Social Security or the Office of Personnel Management (for federal employees) has found the veteran to be disabled and unable to work.

The Starting Point:  Understanding Individual Unemployability

It is important to understand that to establish a claim for service connection, you must generally provide medical or, in certain circumstances, lay evidence of each of the following:  (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  However, to get TDIU, you must also prove that your service-connected VA disabilities prevent you from obtaining or maintaining any employment.  VA has to fully investigate every aspect of this before they will assign a 100% rating for unemployability.  While they consider other agencies’ decisions about disability, they rarely give much weight to those other agency decisions.  VA wants to make its own decision, because it views its own rules as unique.

There Are 3 Types of Temporary 100% Ratings VA Can Assign

There are only 3 Temporary 100% Service-Connected Disability Ratings that a veteran may be eligible for through the VA: Prestabilization ratings, Convalescent ratings, and Hospitalization ratings.

  • The Prestabilization rating is a temporary 12-month 50 or 100 percent initial rating that is granted when a Veteran is recently separated from service (due to their unstable disability, is in need) and cannot be self-sufficient. An example of this would be residuals from a car accident or gunshot wound.  See eCFR — Code of Federal RegulationsA key part of Prestabilization ratings is that they are only available for the one-year period immediately after discharge.
  • The VA may grant Convalescent ratings (100% temporary disability) to veterans while they are recovering from surgery or immobilization of a joint by a cast without surgery for a service-connected disability.  See Compensation and Pension Service – Special Claims.  This rating also applies to Veterans who, while they are convalescing, cannot be self-sufficient.
  • Hospitalization ratings are granted to veterans who have been hospitalized for more than 21 days for a service-connected disability.  See Compensation and Pension Service, Compensation Hospital Treatment – Compensation   This rating only applies for each day past the 21st day that the veteran is in the hospital.  The percentage returns to their normal service connected percentage upon discharge.

TAKEAWAY:  While it seems like common sense that the VA could assign a 100% rating based upon another federal agency’s decision while they process your TDIU claim, that is not how their system works.  You have to wait for VA to fully process your claim before they will assign a rating, even if it takes years.

 

If you need to speak to an experienced Veterans Disability Attorney, call us toll-free from anywhere in the USA at (866) 282-5260.

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