Hello Jim,
I have a pending UI claim. I researched as much as I could. I'm trying to find what criteria VA uses to determine acceptance of my claim. Now I'm not talking about the "two PTSD symptoms with one at least 40% type of criteria---I think they call it the minimum criteria. If that was all the criteria, then my claim would be accepted. There must be criteria that the powers that make those decisions go by? All the psychiatrist asked me was how I get along with the daughter and wife, and made a comment that he saw I was 10 years clean of my polysubstance abuse. How he can make a determination that I am employable by that is beyond me---I've already seen his report and he marked employable. So, I'm trying to figure out how the people at the VA when they get his "report" use any other criteria to decide?
Thank you for you concern in this matter!
Reply:
Good question.
The minimal criteria is usually referred to as eligibility. You become eligible to apply for and be considered for the TDIU benefit when you are rated with a single disabling condition at 60% or more, or multiple conditions adding up to 70% with at least one of those at 40%.
If you don't meet the eligibility criteria and you apply anyhow, you are likely to be denied based on the fact that you aren't eligible. Even so, you may seek a special consideration by the VA Central Office (VACO) but you must ask for that directly. I don't personally know of anyone who has achieved such a rating.
If you are eligible, then it must be determined that you are unable to get or maintain gainful employment. Gainful employment is sort of loosely defined as a real job...40 hours a week and a paycheck above the poverty level. Anything less than gainful employment is called marginal employment. In a broad sense the rating has nothing to do with any wealth or assets you may have. It's all about working. Even if you win the Lotto, you may still be eligible for TDIU if you can't work.
The inability to work at gainful employment must come from service connected conditions. VA does allow some leeway there. For example, you may have service connected conditions that make you eligible but by themselves wouldn't really appear to interfere with working. But if you also have a non-service connected disabling condition, VA should take that into consideration.
The decision is made by a "rater". That person is formally an RVSR...a Ratings Veterans Service Representative. He or she should determine eligibility first and then the seriousness of the rated conditions and then the employment history. As the rater considers the rated conditions, he will take into account the report that the C & P examiner wrote up. It's worth noting that the C & P examiner does not make the decision but only renders an opinion. The C & P examiner's opinion is just one piece of the puzzle.
Employment history is to be considered by the rater. If the veteran is young (under age 55) most agencies that work with disabled people try to determine whether or not the individual can be employed at some other occupation in the future. Nobody wants to permanently label a younger person as totally disabled for life if there is any other route to a productive way of life. After age 55, it's agreed that most disabled people will be more difficult to retrain for any position other than what they're worked in for most of their lives.
I get a lot of email from veterans who are working but struggling with it. They want to apply for TDIU and then once they are awarded the benefit, they can quit or retire. Of course, it doesn't work that way. The term unemployability is unique to the VA and implies that the veteran isn't able to be employed because of service connected conditions. Thus, it would seem apparent that if you are employed, you aren't unemployable. The TDIU benefit isn't a retirement program or a bonus for the veteran if he decides he just doesn't like getting up every morning.
As you can see, the rater will use a combination of hard and fast rules as well as a fair amount of subjective consideration to reach a decision. Even when a veteran meets eligibility criteria, if the rater senses that the veteran may be able to work at gainful employment, the TDIU rating will be denied.
Eligibility to apply for any benefit doesn't mean that the benefit award is assured. That isn't unique to VA. You may be eligible to apply for a car loan to purchase your first Maserati but there is no assurance that you'll get the loan.
It's my experience that the single most important factor is employment history. If the veteran has a confirmed history of job loss and difficulty in keeping jobs because of a service connected condition, that weighs heavily in his favor. If the veteran can show evidence that he has diligently tried to find gainful employment but has been systematically denied gainful employment because of a service connected condition, that will probably result in an award.
If the C & P examiner states that the veteran is probably employable, that weighs heavily against the possibility of an award of TDIU. If that happens and the veteran is denied, the vet may then appeal but will need a stronger statement from a more qualified independent examiner to refute the VA C & P examiner's opinion. I often call that the battle of the letters. The opinion from the medical professional with the most letters behind his name wins.
To be awarded the TDIU benefit is a complex decision with many facets to consider. Many TDIU awards are wrongly denied and on appeal, the benefit is awarded.
There is much more to read about TDIU on my blog at http://www.vawatchdog.org/tdiu-unemployability.html