Posted by Gregory M. Rada | March 2, 2021 | Firm News
Although many complicated factors form the overall picture of whether a veteran is able to secure and maintain substantially gainful employment, VA regulations prevent them from taking certain factors into account when making decisions on entitlement to individual unemployability (TDIU or IU). Even though many elements may unquestionably contribute to the overall picture of whether a veteran is unemployable, the VA must ignore some things when determining entitlement to TDIU. Below, we will discuss some of the components that the VA may and may not consider.
No. Age is not supposed to be a contributing factor when determining eligibility for TDIU. The VA regulation on age, 38 C.F.R. § 4.19 states:
Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. Age, as such, is a factor only in evaluations of disability not resulting from service, i.e., for the purposes of pension.
While a veteran may have multiple conditions that prevent them from working, when making decisions on claims for individual unemployability, VA is required to only consider the effects of disabilities that are service connected. For example, if a veteran suffers from post-traumatic stress disorder (PTSD) that is service connected and chronic foot pain that is not service connected, VA may only consider the effect of the veteran’s service-connected PTSD. An effective Veteran’s Disability Attorney would isolate the service-connected conditions from the non-service-connected ones, and argue that the service-connected conditions make the veteran unemployable.
First, it is important to understand that VA cannot simply say that unemployability is not due to your service connected conditions and only due to your non-service-connected conditions. It is also not enough for them to say that unemployability or their denial of a TDIU claim is due to the “combined effects” of the non-service-connected and service-connected disabilities.
VA is required to clearly attribute the level of unemployability due to the service-connected conditions vs the non-service-connected conditions. If the extent to which disabilities cause unemployability is unclear, VA should obtain a medical opinion regarding the degree of disability, if any, that is attributable to the veteran’s service-connected disabilities alone.
If VA denies a TDIU claim, an effective attorney will usually engage a vocational expert to review the record, interview the vetearn, and render a report and opinion that explains why a veteran’s service-connected disabilities make them unable to secure and maintain substantially gainful employment. Vocational experts are trained to explain how medical conditions would or would not preclude a person from maintaining employment, and a vocational report can be invaluable if you need to appeal VA’s denial of individual unemployability.
Serving this country is a great honor, but it can come with a heavy price if you are left with life-long disabilities that prevent you from maintaining employment. Put yourself in the strongest possible position to have your appeals approved and talk to an experienced VA disability benefits attorney about your situation. Gregory M. Rada, Attorney at Law understands the bureaucracy a disabled veteran faces when seeking disability benefits, and will give your case the personal attention it needs to get approved. Contact me today at (844) 838-7529 for a free phone consultation.
Gregory Rada is a Veterans Benefits Attorney who practices Nationwide. He graduated from the University of Connecticut School of Law, and has been practicing law for six years. Gregory Rada believes in fighting for fellow veterans. Learn more about his experience by clicking here.