Best Approach With TDIU Claim
Many Veterans apply for a Total Disability rating based upon Individual Unemployability (TDIU) which entitles them to be paid at the 100% disability rate if they can establish that their service-connected disability[ies] prevent them from maintaining gainful employment.
Veterans can qualify for a TDIU rating anytime one or more of their service-connected disability[ies] prevents them from obtaining employment, regardless of the percentage of the disability rating. In fact, most veterans seeking a TDIU rating have an earnings history of below the poverty line and seek help from the VA. Unfortunately, not all Veterans will receive that aid.
One of the simplest reasons why they fail to obtain TDIU is that the Veteran did not submit the VA Form 21-8940 (Veteran’s application for increased compensation based on unemployability) with their claim for individual unemployability. Indeed, many Veterans overlook this simple step and it costs them their whole claim. So, if you are thinking of applying for TDIU, don’t forget to complete this form as well.
Another common reason why the claim can be denied is a medical examiner will find that although they might not be able to perform jobs most people can do, they are still able to do “sedentary work”. Thus, the VA's reasoning goes: they are still employable and there is no need for a TDIU. The examiner ultimately believes that if the Veteran can move around, and speak well, then they can at least hold a “desk job”, which is basically what they mean with the term "sedentary work".
According to the Department of Labor and the Social Security Administration "sedentary work" is defined as follows:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
However, the VA has never defined the term “sedentary work” and leaves it up to the medical examiner to determine that there is some type of “sedentary work” they are able to do.
This makes it very hard for Veterans to obtain the compensation they deserve and they must sometimes go a step beyond to counter the VA’s claim. The best thing a Veteran can do is find a vocational rehabilitation expert to review their case and provide an opinion on their employability. The expert should look at the Veteran’s work history, training, skills and experience, and compare them with the physical and mental abilities unaffected by their service-connected disabilities. After this analysis, the vocational expert can then decide whether they are able to get and keep "substantial gainful employment". The inability to obtain and perform "substantial gainful employment" is considered to be key factor in determining that the Veteran is entitled to TDIU.
Our office regularly utilizes vocational experts in order to proactively overcome the medical examiner who opines that the Veteran is able to perform "sedentary work".
We are available to provide representation for the Veteran who believes they qualify for TDIU.