VA May Not Consider Age in Individual Unemployability Claims

Tucker Law Group
November 7, 2016

Veterans often ask if they can file a claim for Individual Unemployability after their normal retirement age. The answer is YES!  VA is prohibited from considering a veteran’s age in service-connected disability claims.  A disabled veteran whose disabilities prevent them from working may file a claim for Individual Unemployability at any age.  VA’s regulations clearly state:

38 C.F.R. § 4.19 Age in service-connected claims.

Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. Age, as such, is a factor only in evaluations of disability not resulting from service, i.e., for the purposes of pension.

Despite the law which requires VA to ignore age in claims for Total Disability Based on Individual Unemployability (TDIU), it is not uncommon for age to factor into VA’s analysis about the reasons why a veteran cannot work.  Cases have even worked their way up to the Court of Appeals for Veterans Claims, where the Board of Veterans Appeals improperly considered age.  For example, in Pratt v. Derwinski, 3 Vet.App. 269 (Vet. App. 1992), the Veterans Court had to specifically call out the Board for doing exactly that.  The Court held that “a determination concerning unemployability indeed must be made on the basis of service-connected disabilities alone.”  As recently as last year, the Veterans Court again had to overturn a Board of Veterans Appeals for considering age in a TDIU case in Vanosdall v. McDonald, No. 14–3766, 2015 WL 7254207 (Vet. App. November 17, 2015).

TAKEAWAY:  You can file a claim for Individual Unemployability at any age if your VA service-connected disabilities keep you from working.  If you already filed your claim for TDIU and VA used you age as part of the reason why VA denied the claim, you have grounds for an appeal, and you should consult an attorney immediately.

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If the VA has denied your claim for Individual Unemployability benefits, call our VA Disability Lawyers at (866) 233-5044. We handle cases for veterans like you all over the U.S.A.