Total disability based on individual unemployability (TDIU) means VA pays a veteran at the 100% rate because the veteran’s service-connected disabilities prevent them from working. You can read more about TDIU ratings here. VA is notorious for withholding TDIU ratings. VA makes veterans jump through hoops just to claim TDIU and then more hoops to grant the award. This is despite VA’s requirement to maximize a veteran’s benefits.
Here is a typical scenario. Veteran files a claim for posttraumatic stress disorder. While developing the claim, VA comes across evidence that the veteran’s PTSD prevents him or her from working. VA grants service connection and assigns a 70% rating. Veteran is happy with 70% and doesn’t appeal. But what the veteran doesn’t realize is that the evidence of unemployability triggered VA’s obligation to consider TDIU. VA just didn’t. This is, unfortunately, not an unusual scenario.
All is not lost, however. Even though the veteran never appealed VA’s rating decision, there are two avenues to have the claim readjudicated and have the effective date go back to the date of the original claim. Thus, for our example veteran, even if the rating decision granting 70% for PTSD came in 1988, there is an opportunity to have the 1988 decision readjudicated and, if TDIU is granted, for the effective date to go all the way back to the date of that initial claim.
Option 1 | Request readjudication of the earlier rating decision based on a clear and unmistakable error
The U.S. Court of Appeals for the Federal Circuit has held it is a clear and unmistakable error for VA to not consider TDIU where the evidence reasonably raises the possibility. The case is Roberson v. Principi, 251 F. 3d 1378 (2001). The facts are similar to those in our example above. The veteran never specifically claimed TDIU, but with his claim he submitted evidence that showed his service-connected condition prevented him from working. In that decision, the Federal Circuit said “VA must consider TDIU because, in order to develop a claim ‘to its optimum’ as mandated by Hodge, the VA must determine all potential claims raised by the evidence….”
So how do you use Roberson to your advantage? Here’s how, in a step-by-step format.
Step 1) Get your entire claim file from VA. It will have in it all the evidence VA had at the time of the rating decision in question. If you aren’t sure how to get your claim file, we can get it for you. It takes about a week.
Step 2) Comb through the file and pull out all of the evidence from before VA’s rating decision that showed your service-connected condition caused difficulty maintaining regular employment.
Step 3) Submit a 21-526EZ. Where it asks to identify the claim, write “see attached” and attach a statement using the template below.
VA clearly and unmistakably erred in the [FILL IN DATE] Rating Decision when it did not consider the reasonably raised claim for a total disability rating pursuant to his individual unemployability. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005). “…[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, … the VA must consider TDIU.” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). “VA’s failure to consider a TDIU claim in this manner is properly challenged through a CUE motion.” Andrews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005). [IN THIS NEXT PARAGRAPH, POINT OUT TO VA ALL OF THE EVIDENCE FROM BEFORE THE RATING DECISION THAT SHOWED THE SERVICE-CONNECTED CONDITION PREVENTED THE VETERAN FROM WORKING]
Step 4) Wait for VA’s decision. If (when) they deny it, give us a call and we will review the file to see if we can help.
Option 2 | Argue the evidence of unemployability was an informal claim for TDIU that VA has yet to adjudicate
Under slightly different facts from above a veteran could argue that the evidence of unemployability raised an informal claim that VA has yet to consider. First, it requires knowing a bit about informal claims. An informal claim is any communication from the veteran indicating intent to apply for a benefit. This includes requests to increase an existing rating for an already service-connected condition. On March 24, 2015, the VA stopped recognizing informal claims for benefits. But informal claims received prior to March 24, 2015 must still be adjudicated by VA. Informal claims not yet adjudicated by VA are still pending. This is regardless of how long ago they were submitted. If you find an informal claim from 1972 in your claim file, it is likely still pending.
Under the pre-March 24, 2015 rules, medical records showing service-connected conditions had worsened counted as an informal claim for an increased rating. In this example, picture a veteran already service-connected for a physical or mental condition and rated a combined 70%. After VA’s decision on disability compensation, the veteran continues their treatment at a VA hospital. Those VA medical records show that the veteran’s service-connected conditions prevent them from working. The Court of Appeals for the Federal Circuit, in Norris v. West, 12 Vet. App. 413 (1999), held those records could constitute an informal claim for TDIU that VA is obligated to consider and adjudicate.
So how do you use Norris to your advantage? Here’s how, in a step-by-step format.
Step 1) Get your entire claim file from VA. It will have in it all the evidence VA had at the time of the rating decision in question. If you aren’t sure how to get your claim file, we can get it for you. It takes about a week.
Step 2) Comb through the file and and find any evidence, whether before or after the old rating decision, that showed your service-connected condition caused difficulty maintaining regular employment. Remember this evidence must have been part of the claim file before March 24, 2015.
Step 3) Submit a 21-526EZ. Where it asks to identify the claim, write “see attached” and attach a statement using the template below.
Prior to March 24, 2015, VA accepted informal claims for benefits. An informal claim for benefits is initiated by VA’s receipt of a report of examination or hospitalization for previously established service-connected disabilities. 38 C.F.R. § 3.157(b) (2014). VA’s receipt of evidence indicating a veteran’s service-connected disabilities prevent them from maintaining substantially gainful employment constitutes an informal claim for TDIU benefits. Norris v. West, 12 Vet. App. 413 (1999). After the [FILL IN DATE] Rating Decision which granted service-connection for [FILL IN YOUR SERVICE-CONNECTED DISABILIITIES], VA received evidence showing my conditions prevented me from working. Under the rules in place at the time, this evidence constituted an informal claim for TDIU benefits which VA has not adjudicated. Please issue a rating decision on this informal claim.
Step 4) Wait for VA’s decision. If (when) they deny it, give us a call and we will review the file to see if we can help.
Curious if your claim file contains any unadjudicated claims?
Valor firm can perform a thorough and completely free top-to-bottom evaluation of your claim’s entire history. It takes about two weeks from start to finish. You can start the process here.
