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TDIU benefit

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Posted on: Tuesday, September 21, 2010
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Jim,

I’m applying for 70% TDIU. Once I’ve received my award, how can I get the TDIU benefit to become a more permanent 100%?

Reply:

You’ve asked a question I receive dozens of time each month. The TDIU benefit is perhaps the least understood of all VA disability compensation benefits.

You’re in luck. I’ve just received the most recent training letter that VA has on the topic. The TL 10-07 was distributed 09/14/2010 and will soon affect the VA M21-MR, IV.ii.2.F
http://www.benefits.va.gov/WARMS/Site_Map.asp

If you’ll take the time to carefully read through this column and then the attached document, you’ll be up to date.

I’ll take a moment to remind you that when you are confronting the VA disability compensation process, you’re on your own. The veteran who educates him or her self on the basics of the rules and regulations of the system is far more likely to be awarded the maximum benefit earned.

Veterans who depend on others to help them aren’t likely to fare as well.

I often meet veterans who have decided that they deserve benefits but they want someone else to do the task of applying to VA and completing all the paperwork for them. They’re frequently angry when the process fails them.

I am a champion of the DIY approach. A veteran who spends the necessary time to read and understand the data I’ll present today will be in control of his future. The vet who decides that this is too much work and way too much to read and understand is far less likely to achieve a maximum benefit.

I’ll do my best to keep my part of this simple and easy to understand. The Training Letter from VA is a bit more complex.

Total Disability compensation may be achieved on two separate paths at VA. You may be rated as 100% disabled via The Schedule For Rating Disabilities or you may be rated as 100% disabled via the Individual Unemployability path.

A “schedular” rating might be one where you have a condition that is required to have a 100% rating, for example, you’ve had an AICD implanted to control erratic beats of your heart. The path to this rating could be that a Vietnam veteran develops DMII. DMII in the RVN veteran is presumptively rated as service connected. If that veteran then develops heart disease, the heart disease can easily be proven as secondary to the DMII, thus the heart disease becomes a secondary service connected condition.

Should that heart disease then develop into a condition that medically requires the implanting of an AICD device, the veteran is rated as 100% disabled by the schedule. Notwithstanding the ratings for DMII and heart disease, the implanting of an AICD is rated as a 100% disabling condition.

Interestingly, the schedular rating has nothing to do with a veterans employment. The fact that there is a service connection to the implanting of the AICD device is the only requirement. That veteran who receives that rating may then become employed with no fear of losing the rating. Some people who receive such devices do choose to continue to work at gainful employment.

Then there are veterans who have a number of lesser conditions with various ratings but because of the Combined Ratings Table or “VA Math”, their multiple conditions and ratings don’t add up to 100%.
http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=38&PART=4&SECT...

VA recognizes that many of these veterans, although they are not rated as 100% disabled, aren’t able to seek and keep gainful employment. In VA terms, they are unemployable due to their service connected disabilities.

VA then looks carefully at these individuals as individuals to assess how much of an effect the combination of service connected disabilities has had on their ability to earn an income and work as productive citizens. If it is apparent that the service connected disabilities keep the veteran out of the work force, then VA must assign the rating of 100% disabled due to Individual Unemployability.

It’s worth noting at this point that to be rated as 100% unemployable by the VA system, all the disabilities considered must be service connected. This is markedly different than the Social Security system and the SSDI benefit. In the SSA system, one must show that he or she can not reasonably hold employment due to any mix of disabling conditions.
http://www.ssa.gov/disability/

To achieve a 100% rating in the VA system, all disabling conditions that are to be considered must be established as being caused or contributed to by military service.

There are requirements when VA considers the TDIU benefit. The veteran must have a rating of at least 60% with a single condition rated at 60% or greater or the veteran must have a rating of 70% with at least one of the underlying ratings at 40%.

If those requirements aren’t met precisely the Regional Office may then forward the application for TDIU to VACO for a decision by the C & P Director. If it is then determined that this individual veteran will not be reasonably able to achieve gainful employment in the future, the Director may assign the TDIU benefit.

Either the schedular or the IU benefit may be temporary or it may be permanent. If permanence is awarded for either a schedular or an IU 100% rating, the statement, “Basic eligibility under 38 U.S.C. Chapter 35 is established from [date].” is required.

It’s worth noting that many decision letters don’t include either this statement or any other hints of the permanence of the award and the veteran is left wondering. The alternative statement used is “future examinations are scheduled” meaning that the award is temporary or “no future examinations are scheduled” indication that the award is permanent.

The word “permanent” is a misnomer when used by VA. The VA may elect at any time to review any claim to render a proposal of changes to the claim. There is no protection of a 100% rating until the rating has been in place, uninterrupted, for 20 years.

Other than the path to achieve the benefit and that the IU rated veteran can not hold gainful employment, the Schedular 100% rating and the IU 100% rating are exactly the same. The monthly benefit amount is equal across the board. If the rating is said to be permanent by VA all benefits for dependents are exactly the same.

I recommend that veterans do not attempt to change an IU rating to a schedular rating, a practice I see a lot of.

To achieve the 100% schedular rating does not change any benefit that the veteran may receive. Any attempt to modify the IU status to a schedular status does open one’s folder for review however. This can be a hazardous maneuver as any time the folder is opened for review, the VA will first look at opportunities to lower the rating. I’ve communicated with a number of veterans who have attempted to have their IU switched to schedular and who find themselves staring at a letter proposing to reduce their benefit significantly because of “improvements” to their conditions.

I’ve also confronted veterans who wish to trade the IU rating to a schedular rating so that they are able to preserve their 100% rating as they return full time to gainful employment. There are a few of us who would gleefully game the system and milk out dollars by deceiving VA about the extent of their disabling conditions. I do not condone such activity personally and I’m aware of the many checks and balances that VA has in place to prevent such fraud.

The TDIU Training Letter is one of the best I’ve seen. It is comprehensive and provides a number of good examples of how this works. I’m also including another explanation of the IU benefit via a link below. While this dates from 2005, it continues to be relevant as Daniel Cooper describes the benefit to members of Congress.

You are advised to pay close attention to details in this training letter.

For example, the requirement to complete VA Form 21-4140 is reinforced here.

The VA Form 21-4192, “Request for Employment Information in Connection with Claim for Disability Benefit” is required but it’s noted that, “A TDIU evaluation should not be denied solely because an employer failed to return a completed VA Form 21-4192.”

Perhaps most significantly, “However, as a result of the Rice decision, a request for TDIU, whether specifically raised by the Veteran or reasonably raised by the evidence of record, is no longer to be considered as a separate claim but will be adjudicated as part of the initial disability rating or as part of a claim for increased compensation.”

Keep reading, continue educating yourself. At the VA Watchdog dot org site you’ll always find the latest factual and relevant news that you can use. Learn and then DIY...Because nobody cares about your claim as much as you do.

The TDIU Training Letter is available here for viewing or download.

http://www.va.gov/OCA/testimony/svac/05102720.asp

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