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