The phrases “100% disabled,” “permanent and total VA disability ratings,” and “total VA disability rating” get thrown around a lot in Veterans disability benefits claims.
Problem is, that phrase doesn’t always mean the same thing to everyone. In fact it can mean several different things in at least 5 different types of service connection claims.
Let’s see if we can clear some of the confusion up.
5 things many Veterans don’t know about Total VA Disability Ratings.
1) There are MANY paths to a 100% rating.
The idea of a Total VA Disability Ratings start from the same point:
Total (100%) disability ratings will be assigned “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. § 3.340(a) (2013).
There are 5 ways to get there, though:
* Total VA Disability Based on 100% Schedular Rating. When the Veteran’s service-connected condition meets the 100% impairment rating requirements found in Table 4 of 38 CFR, they receive a 100% schedular rating).
* Total Disability Based on Schedular TDIU (When a Veteran has one service connected condition at 60%, or a total rating of 70% with one being at least 40%, the Veteran can request a 100% schedular TDIU rating).
* Total Disability Based on Extra-Schedular TDIU. (When a Veteran is service connected for one or more conditions, but is not able to secure substantial gainful employment, he/she can seek an extra-schedular TDIU rating of 100% even if their ratings don’t reach the schedular TDIU requirements above).
* Total Disability Based on an Extra Schedular Rating (if the VA schedule of ratings does not adequately compensate a Veteran’s service connected disability, they can seek a 100% extraschedular rating. This is NOT the same as extra-schedular TDIU)
* Temporary Total Disability based on hospitalization (generally speaking, this is awarded when a Veteran is hospitalized for a service-connected condition and for the 6 months following that hospitalization).
Don’t confuse these PATHS to a 100% rating with the designation that a veteran has “permanent and total disability rating.” A lot of veterans spend a lot of time trying to get to this designation, and while I’m not discouraging it (quite the contrary), it is an end state, not a path.
So, for example, a lot of veterans email my law firm and ask to hire us to get a “permanent and total disability rating.”You do NOT need to have a 100% rating to get a permanent and total VA disability rating. This type of rating only happens when a veteran has no chance of recovering or improving from their disability – it protects them from a reduction. So, if your goal is to get your VA disability properly rated at 100%, focus on getting that rating. Then focus on showing the VA that there is zero chance that you will recover or improve from that level to get the permanent and total VA disability designation.
2) A Claim for Increase is also a claim for TDIU when there is evidence of unemployability.
In the Rice v. Shinseki case (22 Vet. App. 447, 454-55 (2009)), the Federal Circuit held that a Veteran’s request for a higher disability rating, coupled with evidence indicating that the Veteran’s ability to work was “significantly impaired” by his or her service connected conditions reasonably raises the issue of entitlement to TDIU as an alternative basis for increased compensation.
What does that mean in practical terms? Depends on where you are in your case.
When FILING a claim for increase, if you are unemployable because of the service-connected condition – regardless of the percentage, include VA Form 21-8940 and specify that you are seeking TDIU in addition to the claim for increase for that condition (include all service-connected conditions that impact your ability to get and keep substantially gainful employment).
When arguing that the VA wrongly denied a claim, look in your C-File for claims for increase where you also alleged you are unemployable or unable to get employment because of that condition, and then you could argue that the TDIU claim is reasonably raised by the record.
We are arguing the opposite in a case currently before the Board of Veterans Appeals – that a claim for TDIU, being a claim for increase, necessitates that the Board adjudicate the increased compensation claim as well as the TDIU claim.
NOTE: Don’t confuse the concept of unemployability with unemployment. This is a common mistake, and one that the BVA makes far more often than it should. Unemployability means the ability to get and keep substantially gainful employment. Unemployment is largely irrelevant to a TDIU claim – in fact, veterans can still work and collect TDIU.
3) Extraschedular TDIU is NOT an Extra schedular Rating.
Adding MORE confusion to the mix, there are 2 totally different types of “Extra Schedular” ratings.
The first is a 38 CFR 3.321(b) Extra Schedular Rating.
This is available “in exceptional cases where the [normal schedule of ratings] is inadequate.” Thun v. Peake, 22 Vet.App. 111, 114 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
To determine whether a 3.321(b) extra schedular rating is warranted, the Board must determine that the schedular evaluation under which the Veteran is rated does not contemplate the [Veteran’s] level of disability and symptomatology, and that the Veteran has an “exceptional disability picture exhibited by factors such as ‘marked interference with employment’ and ‘frequent periods of hospitalization.’ “
The second type of extra-schedular rating is “Extra Schedular TDIU”.
Extra-schedular TDIU is governed by 38 CFR 4.16(b) – and is totally separate from the consideration of an extra-schedular rating under 3.321(b). See Kellar, 6 Vet.App. at 162; Stanton v. Brown, 5 Vet.App. 563, 564-70 (1993) (issue of extraschedular evaluation is separate from issue of TDIU rating)
A key difference – but not the only difference – is that Extra Schedular TDIU requires evidence that a Veteran is unemployable, but does NOT require proof that the Veteran is inadequately compensated by the normal schedule of ratings. a 3.321(b) extra schedular rating has nothing to do with unemployability – you merely need to prove that the normal Schedule of Ratings does not adequately compensate you for your service-connected disability.
4) The VA will deny your claim for TDIU – administratively – if you don’t file the 21-8940.
I see this happen SO much. Veteran claims unemployability or TDIU, and the VA actually catches the inferred claim.
They send a letter saying – essentially – send us a copy of VA Form 21-8940. The Vet never sends it in.
The VA has an internal policy of an administrative denial of a request for TDIU if the Veteran fails to send in VA Form 21-8940. And they usually don’t give a second warning.
If your request for TDIU was “administratively denied“, what can you do?
Send in the VA Form 21-8940 within a year of the VAs request for the VA Form 21-8940, and your claim should get processed properly (knowing full well that the VA rarely does what it should). Take a look at 38 USC 5103(b)(1) for the authority on this.
5) The VA will NOT give you an exam for a TDIU claim unless you specifically identify the medical condition that led to the Unemployability.
Hell, they may not even give you the exam anyway.
But the important point to note, here, is that you should list on VA Form 21-8940 every single medical condition that is, or that you believe should be, service-connected that you believe plays a role in rendering you unemployable.
And, by the way, in about half of the cases where the VA says that the Veteran never submitted a VA Form 21-8940, I’ve found that they have already submitted at least one copy of the Form.
How do you find out if you submitted one and the VA is just not seeing it?
Get a copy of your C-File: it’s the most important document in your VA Claim.
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First published: September 9, 2016, at 03:55
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