Arguing TDIU at the PEB

[Jason]

An issue that Servicemembers should consider if they qualify is a finding of Total Disability for Individual Unemployability (TDIU).

As anyone who has been following developments in the law regarding PEB knows, the 2008 National Defense Authorization Act made clear that the PEBs must rate according to the Veterans Affairs Schedule for Rating Disabilities (VASRD). Contained in the VASRD, at 38 CFR § 4.16, is the rule for TDIU. This means that the PEBs must follow this rule rules. It states:

"§ 4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue."

I will write more about TDIU in another post, but the point to take away from the above is that normally, there is a two step analysis to qualify for TDIU. The first is meeting the schedular requirements of 60% rating for one condition or a combined rating of one condition at 40% and other conditions equaling at least 70%. If the Servicemember qualifies, then the next step is to see if they are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Note that, however, even if the Servicemember does not receive a high enough rating under the first step of the analysis, if they are unable to follow a substantially gainful occupation, the PEB should be required to consider an extra-schedular rating and to include "a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue."

I recently argued this position at a Formal PEB hearing. I am not aware of this rule being argued in other cases and I do not expect that most PEBs will be receptive to this argument. However, if they do not adhere to these rules, I believe that a Federal Court will rule against the PEB and require them to rate a Servicemember who qualifies at 100%. The PEB has not ruled yet in the case where I argued this, but I will update when they do. The point to remember is that this may be a basis for a higher rating than might otherwise be awarded.

[Chinook]

Hi Jason,

Then this should also help us with our Social Security Benefits, right.

I know of a few of us with back issues who have been denied. Yes, everyone has said appeal-and I was getting ready too. I was going to attach a copy of my TDRL 60% incapacitating episodes form.

The SS office said that based on my education I should be able to make at least $900 month and so they denied me-even though I still have the incapacitation episodes I was rated 60% on. And the real deal is that I am limited on sitting, standing, walking and thinking. I just spent 3 days in the house cause I couldn't move-too much fun on Thanksgiving I guess.



Thanks for all you do.

[DragonFly757]

Very good info.

My husband is rated at 80% by the Army and 100% by the VA. He is also listed as unemployable (IU) by the VA and has not been able to work.

With that said, should the Army be rating him at 100% too? Did I read that correctly? His TDRL hearing is coming up in two weeks.

[Jason]

Torrey,

I believe they should rate him at a 100% under TDIU. That said, remember that anything in excess of 80% will not change his military disability compensation (which is capped at 75%; you need to reach 75% or higher, which in the award calculation should be rounded to 80%, but the cap will diminish his actual payout to 75%).

I would be shocked if they applied this law correctly, though.

[RikersIsland1]

Dragonfly757, I don't remember if I touched on this but if your husband is rated over 30% then he should be in the AW2 program. If so then all answers and assistance should be coming from his case worker, that's their job/function. If they are not doing their job then you need to be yelling from the rafters. If your husband is not in the AW2 he should be.

[DragonFly757]

Rikers,

I posted a few weeks ago about the problems I was having with AW2...

CRSC for TDRL vet - so confusing!

To update on that even more? Regarding the educational benefits I asked him to find for me...The AW2 rep called me back to give me information that *I* already gave him based on my own research. It was like he never heard a word I said. That was two weeks ago and he promised to call back. He has yet to do that. As soon as I get this TDRL issue taken care of, the fight with AW2 will commence! I am truly disgusted at the level of service we've been getting.

[RikersIsland1]

The AW2 rep called me back to give me information that *I* already gave him based on my own research. It was like he never heard a word I said. That was two weeks ago and he promised to call back. He has yet to do that. As soon as I get this TDRL issue taken care of, the fight with AW2 will commence! I am truly disgusted at the level of service we've been getting.

DragonFly757, If you feel that the AW2 program is not assisting as it should I would recommend that you contact the AW2 and voice your displeasure about the case worker that is assigned to your husbands case and if necessary, ask for a new case manager. Tell your AW2 Rep that you want to talk to their supevisor to voice displeasure with the way your husband case is being handled by them (AW2).

Let them know that if your husband's issues (not yours) are not resolved in a reasonable time frame (72 hours) then you will be contacting the DOD Wounded Warrior Program to voice your displeasure with the Army AW2.

Once you contact the DOD WWP they have 96 hours to get back to you with a resolution, supposedly.

But keep in mind that the DOD WWP will send your issue to the Army AW2 for explanition and resolution. (Do you see)

It would be a lot quicker this way than to seeking a Congressonal IMO.

Just make sure your right about your case/concern.

Hope this helps.

[DragonFly757]

This was actually my plan:

1. Call AW2 rep. I already left him a message to call me on Monday, but I will try him again if I don't hear from him by mid-afternoon that day.
2. Follow up with the regional supervisor if the AW2 rep doesn't help with the current issues for my husband. I may need to get a new rep, if anything.
3. If they don't resolve it then I will go to WWP or another program altogether.
4. If I go to another program, I will write AW2 and explain why.

Your suggestions are excellent. I appreciate it!

Right now I just need help getting my husband's medical documents together, file for CRSC (with some assistance) and get his PCS move benefits extended for another year. In the meantime I wanted to know what educational benefits are available to me and Jason already helped me get that info. Those are the things that are currently on his plate of things to do. My last rep left in September and she was just starting to work on those for us. It's just been TOO long and the PCS deadline is in only a few weeks.

[RikersIsland1]

3. If they don't resolve it then I will go to WWP or another program altogether.
4. If I go to another program, I will write AW2 and explain why.

Recommend that you contact WWP, the the only other Army program is the WSFH. But the WSFH is staffed by contract workers, (Geen Suiters are there but there is only one SME)

The WWP will direct you to the appropriate agency to handle your case, which shoud be the AW2 (understand). After AW2 knows that you contacted the WWP they then have 96 business hours to resolve your issue. At some point afterwards the WWP is suppose to contact you to back to see if your issue is resolved.

That is that way I understand it. But dont quote me.

[DragonFly757]

Rikers, you are my hero! Thanks for all your help and for looking out for us.