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VA Must Consider ALL of Veteran’s Conditions in Combination, as well as Employment History, in Individual Unemployability Claims

Logo of U.S. Department of Veterans AffairsVeterans who are not rated at 100% for their disabilities can still can paid at the 100% level if they can prove that their service connected disabilities prevent them from working.  This is called Total Disability due to Individual Unemployability (TDIU).  It is an extraschedular total disability rating. In a TDIU claim, VA is supposed to look at whether all of a veteran’s service connected conditions make them unable to work.  VA cannot consider things that are not service connected though.  Unfortunately, VA often fails to properly evaluate Individual Unemployability claims.

VA Must Evaluate the Combined Impact of All Service Connected Conditions in a TDIU Claim

A recent case from the U.S. Court of Appeals for Veterans Claims explains that the VA cannot look at each condition in isolation.  The case – Cunningham v. McDonald – discusses how the combined effect of all of a veteran’s service connected disabilities must be explored by the VA to determine if the vet is entitled to TDIU.  Judge Lance explained:

The Court agrees that the Board failed to provide an adequate statement of reasons or bases to support its decision. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). Specifically, as the appellant contends, although the Board discussed the effects of each of the appellant’s service-connected disabilities on his employability individually, R. at 9-10, it did not address the impact of the combination of those effects on his employability, see Floore v. Shinseki, 26 Vet.App. 376, 382 (2013).

This means that VA cannot look at one condition and consider whether it is disabling by itself.  VA must look at all of your disabilities. For example, if you have three conditions, say vision, hearing, and a back injury that are service connected, the VA must look at the limitations and restrictions you have from all three of those conditions together to see if that prevents you from working.

VA Must Also Analyze Your Past Work History and Work Skills to Decide Individual Unemployability

The Judge also explained that in Mr. Cunningham’s case, the VA failed to properly analyze how his past employment and the skills he got from that employment factored into his disability:

Similarly, although the Board included a recitation of the appellant’s employment history, R. at 8, it did not discuss the appellant’s “employment history[ or] educational and vocational attainment” or whether that history would impact his employability in light of his disability picture. 38 C.F.R. § 4.16(b) (2016). The Board’s failure to discuss these matters frustrates the Court’s review, and the Board’s statement of reasons or bases is therefore inadequate. See Allday, 7 Vet.App. at 527. The Court will, therefore, vacate and remand the Board’s decision.

The VA cannot merely list a veteran’s job history and say they considered it.  Instead, to properly handle a TDIU claim, the VA has to actually include analysis about the past work history in relation to disability in its rating decision.

Takeway – Do Not Just Accept a VA Denial on Your TDIU Claim

If your VA claim for TDIU was denied, have a VA disability attorney analzye the VA decision for whether VA properly considered 1) the combined impact of your physical and mental service connected conditions, and 2) your work history and skills.  VA notoriously makes errors in Individual Unemployability claims, and you owe it to yourself to have a TDIU denial looked at by a knowledgeable VA attorney.

CASE:  Cunningham v. McDonald, No. 15-1593, 2016 WL 4547487 (Vet. App. 9/1/2016).

If your claim for TDIU was denied, call our experienced VA compensation attorneys to learn about your rights at (866) 282-5260.  Initial consultations are free.

 

 

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    iam 70 years old with 60% disability for prostate cancer, 30% for ptsd and 10% for eye condition and being paid for a total of 80%. in 2006 I stopped working and appliedfor social security disability and was approved in 2009 for a non service connected condition. in 2011 I turned 65 and was then paid retirement instead of disability. would I qualify for tdiu?

    You certainly may be. From what you described, your Social Security Disability decision will not assist you, because it was based upon a non-service connected condition. However, if your rated conditions are preventing you from working a regular job and you can explain why that is the case is to the VA, I see no reason why you could not qualify for TDIU. If that is the situation, you should file a claim for TDIU and your Form 21-8940 and seek TDIU benefits. Be sure to tell VA how your conditions cause limitations and restrictions, including with what we call non-exertional impairments like frequently have to use the bathroom, being unable to focus due to medications or pain, problems reading or eye focusing, inability to deal with other people, needing to isolate yourself, inability to maintain a schedule, etc. You want your doctors to document these problems too. If you are denied, please call us to assist with your appeal at (866) 282-5260. Good luck and thank you for your service!

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