Total Disability Based on Individual Unemployability

What if I can’t get 100% for PTSD?

For severely disabled veterans, their goal is to get to a 100 percent disability rating. This rating, however, is not always possible through the VA rating schedule due to an individual’s particular conditions. When it comes to mental health conditions like severe PTSD symptoms it is particularly difficult to get a 100% rating at times. The more common rating we see disabled veterans get for PTSD is 70%. But, there is another way to be awarded a 100 percent rating: total disability based on individual unemployability (TDIU or IU). In this section, we will cover TDIU for PTSD.

What is Unemployability?

Under VA’s regulations, a total disability rating may be assigned where a veteran does not meet the schedular rating. When that veteran is, nevertheless, unable to obtain and keep a job. TDIU is not a separate claim for benefits but is instead part of the Veterans Affairs rating process. During the VA benefits process, a veteran is assumed to be seeking the highest benefit allowable. This means that if the record shows the veteran is unemployable, the VA must consider IU.

Of course, this does not always happen with post traumatic stress disorder so the veteran should be proactive. The veteran can do so by submitting VA Form 21-8940. This form is the formal application for individual unemployability. The fact that TDIU claims can be raised by the record, but the VA also requires the submission of Form 8940 complicates the process of determining the correct effective date for TDIU, which is discussed below.

What can’t VA consider for IU based on PTSD?

IU, just like service connection for PTSD, is an individualized determination for VA Disability benefits. VA makes the decision in the context of an individual veteran’s capabilities. It does not matter whether an average person in their daily life would be able to secure a job under the same conditions. Also, note that the availability of work in the national or local economy is irrelevant to the consideration of TDIU. The VA may also not consider the veteran’s age or any non-service-connected disabilities. Just because a veteran is young, highly educated, or recently employed in a long career does not justify a denial of IU.

What does VA consider for IU based on PTSD?

When determining TDIU claims, the VA will consider factors such as the veteran’s everyday life struggles with managing their PTSD after a traumatic event in military service.

• frequency and duration of periods of incapacity
• time lost from work due to disability
• the veteran’s employment history and current employment status
• disabled veteran’s educational history
• disabled veteran’s annual income from employment, if any.
• If the disabled veteran is taking PTSD medication, VA should also be determining side effects of the medication that could affect employability.
• if the VA knows that a veteran is receiving Social Security Disability Insurance benefits, it is obligated to obtain any relevant medical records or medical evidence.

VA schedules PTSD C&P exam for unemployability if it appears the veteran cannot work due to PTSD or is incapable of maintaining substantially gainful employment. The examiner must decide whether it is at least as likely as not that the veteran’s service-connected PTSD makes him unable to work. The examiner must describe the disabilities’ functional impairment and how it affects any kind of employment and issues with trying to live a normal life, so to speak. See Part Three for more C&P exam tips.

TDIU Two-Step Analysis

There is a two-step analysis for determining whether a veteran qualifies for a VA claim due to TDIU benefits. First, the veteran’s service-connected disabilities must meet a certain percentage under the rating schedule. Second, the veteran must be unable to secure substantially gainful employment due to his or her service-connected disabilities.

What PTSD rating do I need to get IU?

For the first step, the veteran must have one service-connected disability that is rated at 60 percent or higher. Alternatively, having a combined rating of 70% or higher is also helpful, with at least one disability rated at 40% to qualify for TDIU. Note that for the combined disability calculation, certain disabilities are rated together, for example, disabilities that stem from the same accident or that are all part of the same body system. In the combined scenario, a veteran could have a PTSD rating less than 70% and receive IU. The veteran would qualify for IU if the PTSD and other ratings combine to 70%.

Can I get IU if my PTSD rating is less than 70%?

If a veteran’s PTSD rating is less than 70% he can still receive IU. Even when the veteran doesn’t have other ratings that combine to 70% the veteran can qualify for extraschedular IU. Unemployability turns on whether the veteran’s PTSD keeps him from working. For example, the veteran who has a 50% rating for PTSD and he calls in sick to work frequently. He will probably lose his job. His PTSD would make him eligible for unemployability. This veteran should argue he is entitled to IU on an extraschedular basis. For extraschedular ratings, the Regional Office (RO) refers the case to the Director of Compensation and Pension. The RO’s referral must include the following:

• a full statement as to the veteran’s service-connected disabilities
• employment history
• educational and vocational attainment
• other factors bearing on the issue (like Social Security Records)

An extraschedular IU process for PTSD or any disability can take a long time. Rarely does the RO include all of the above. Unfortunately, these cases are rarely granted. Ask to review the file if your extraschedular rating is denied

Can I still get IU for my PTSD if I’m working?

Yes, you can get IU for PTSD if you still work under certain circumstances. If your work is sheltered or under the poverty threshold then VA does not consider this to be substantially gainful employment. Many veterans get confused with this aspect of individual unemployability.

What is IU substantially gainful employment?

The second element of IU is being unable to maintain substantially gainful employment due to her service-connected disabilities. What is substantially gainful employment? In simple terms, substantially gainful employment is work that is not marginal. Marginal employment means that a person’s income is less than or equal to the poverty threshold for one person. VA uses the poverty threshold established by the United States Department of Commerce, Bureau of the Census.

What is sheltered employment?

A sheltered environment is one that provides special accommodations or breaks or leniencies due to the veteran’s service-connected PTSD. These leniencies would include excessive time off or the ability to leave work at will. These breaks would not be given to any other employee. One example of a sheltered environment is a family business. Another example, an employer that accommodates the veteran for his PTSD in ways he would not for other employees. Additionally, if an employer created a job for the veteran that would not be filled when the veteran left.

For IU, how do I prove that the work is sheltered due to my PTSD?

Even if a veteran is working in a sheltered environment or not earning substantially gainful employment, the VA doesn’t stop there. VA will evaluate the nature of the employment, the skills of the veteran and how PTSD affects him. It will determine if there is non-protected or full-time work that the veteran can do.

You must show that while the veteran may be currently employed it is marginal work. The veteran does not have the ability to perform work with reasonable consistency due to his PTSD. To win IU the best evidence for an IU determination is an opinion from a vocational expert or a medical doctor. This expert would have to state that due to her PTSD, the veteran is unable to maintain substantially gainful employment.

Effective Date

Perhaps the most complicated issue relating to TDIU is the effective date. IU is not a separate claim, but part of the rating process, determining when IU benefits begins is difficult. As a result, this is often something that the VA gets wrong. First, to determine the IU effective date you must figure out when VA received evidence indicating you were unemployable. The evidence could be a medical record or letter from a veteran or someone who knows him. Your record would need to show that you can’t work due to his PTSD. Second, you must determine the status of the veteran’s disabilities at the time the VA received this medical or lay evidence.

Did VA know that my PTSD keeps me from working?

There are a couple of ways to answer the second question. The first possibility is that the VA received evidence of the veteran’s unemployability when she filed a claim for service-connection. If the VA grants service-connection for the PTSD and awards TDIU, the IU effective date would be one of two. First, it could be the date the VA received the claim for service connection. Second, it could be the date the veteran first became unemployable due to his or her service-connected disabilities. The VA will assign an effective date for whichever is later.

If the VA first received evidence of the veteran’s unemployability during a claim for increased PTSD rating the effective date for an award of TDIU would be one of two dates. First, the date the VA received the claim for an increase in PTSD rating. Second, the date the veteran first became unemployable due to his PTSD, whichever is later.

As you can see, this can be a tricky determination to make, so it is always important to analyze the effective date set by the VA to see whether they got it right.

What if VA denies my PTSD claim for IU?

If VA denies IU for your PTSD or assigns the wrong effective date, appeal (a TDIU lawyer may be able to help you). With the Veterans Appeals Improvement and Modernization Act you have three tracks for an appeal. You can appeal in the RO, submit a new claim or appealing to the BVA. If you win under any of these tracks then your effective date is the same as the first claim. You must appeal within one year though. If the veteran fails to appeal within one year, the decision becomes final. The only way reopen it is by submitting new and relevant evidence or by showing CUE in the decision.

What if VA tries to reduce my PTSD benefits?

When VA awards a veteran IU due to PTSD, the VA may not reduce the benefits easily. VA must show there is clear and convincing evidence (CUE) that the veteran is capable of actual employability. This is a high burden for the VA to meet. Even if the PTSD has improved, if VA cannot prove by CUE that she is able to work, IU remains. In addition, if a veteran’s disabilities improve and she returns to work, her IU benefits continue for a year.

Before the VA reduces a disability rating, including TDIU, it must provide a notice of proposed reduction. This notices gives the veteran 60 days to submit evidence to show that her condition has not improved. The veteran also has the opportunity to request a hearing. Most likely, VA will request that the veteran report for a re-examination. An examination that is the basis for a reduction must be more thorough than the examination establishing IU (see Part Three). The VA must review all the new evidence together with the evidence in the record to reach a new IU decision.

Continue to Part Six to learn more about the steps to take after the VA has reached a decision on your PTSD claim. We also have an extensive VA Unemployability (IU) Guide for more information on IU in general.