VA Individual Unemployability: Submitting Social Security Disability Award to VA Raises Issue of TDIU
Veterans may apply for a 100% rating if they are unable to work due to their VA service connected disabilities. This extraschedular benefit is called Total Disability Based upon Individual Unemployability or “TDIU.” Often veterans who might be entitled to TDIU apply for Social Security Disability benefits, but never realize that TDIU is a benefit for which they can apply. What happens when the VA receives the Social Security Disability decision awarding SSD benefits?
Individual Unemployability is part of every claim for benefits.
VA’s regulations allow a veteran to apply for TDIU as a stand-alone claim. 38 C.F.R. Section 4.16 titled Total disability ratings for compensation based on unemployability of the individual does not state that, but VA has adopted Form 21-8940 to allow veterans to do just that. However, under longstanding case law from the U.S. Court of Appeals for Veterans Claims (CAVC), the law is clear that “a claim to [total disability rating based on individual unemployability] benefits is not a free-standing claim that must be pled with specificity; it is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.” Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009)
Even without filing a VA Form 21-8940, VA must investigate TDIU if the record raises the issue
38 C.F.R. Section 4.16 (b) clearly states, “It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.” The CAVC has long held that VA has an obligation to investigate anything that is “raised by the record.” That means that anything in the veteran’s Claim File that would lead the VA to conclude that the veteran might be unable to work must give rise to an investigation for TDIU.
A veteran that submits disability evidence from his Social Security Disability claim raises TDIU on the record
In a case called Townley, the CAVC addressed the situation where a veteran’s Social Security Disability paperwork was submitted to VA, but VA failed to investigate an Individual Unemployability claim. In Townley, a Social Security Administration medical examination report made its way into the veteran’s Claim File. The doctor’s report showed that the veteran was unable “to perform any job that requires any significant amount of physical activity” and notes that he “should be considered for full cardiac disability.” The veteran also testified at his Board hearing that he was unable to work due to his heart condition.
The veteran’s claim was for an increased disability rating for his service-connected coronary artery disease. The CAVC found that the veteran had submitted evidence of unemployability – the Social Security doctor’s report and the Board testimony – and because of that, the issue of entitlement to a total disability rating based on individual unemployability was implicitly raised by the record.
So, what if the veteran submits their Social Security Disability Award?
If a report from a Social Security doctor the issue of unemployability, a Social Security Disability Fully Favorable decision that awards disability benefits must reasonably raise TDIU as an issue that VA must investigate. Why? A Social Security Fully Favorable Decision not only states that someone is disabled as of a certain date, but it explains the facts which the Social Security Judge relied upon to find the person disabled.
A Social Security Disability decision that was made before a hearing before an Administrative Law Judge will not contain the same level of detail. However, it demonstrates that Social Security found the claimant was not able to work. This reasonably gives rise to the issue of total disability and unemployability as well.
If your VA service-connected conditions are the reason why you were awarded Social Security Disability benefits, you should submit your Social Security decision and award paperwork. Best practice would also be to file a VA form 21-8940 too. However, VA often will only award a veteran benefits as of the date the VA 21-8940 was received. If the veteran had submitted Social Security Disability award paperwork or other SSD documents before that date, an earlier effective date might be obtained.
CASE: Townley v. McDonald, No. 14-3632, 2016 WL 4578421 (Vet. App. Sep. 2, 2016).