VA offers two ways for Veterans to be paid at the 100% disability rate – either get there through the schedule for rating disabilities or qualify for total disability based on individual unemployability (TDIU) – i.e. be unable to work because of service-connected disabilities.
Qualifying for TDIU takes more than just a rating and an inability to work. It requires that a Veteran have either 1 disability rated at 60% disabling or a combination of ratings, with one rating at 40% and a combined rating of 70%. Most people know that VA math for combining ratings isn’t straight-forward. It’s complicated and doesn’t always make sense to the casual observer. But there’s one other way to meet the schedular requirements from TDIU that uses simple math, and unfortunately, Regional Offices often get it wrong.
Under 38 CFR §4.16(a)(2), disabilities resulting from common etiology are considered to be one disability; i.e., the 60% scheduler requirement for TDIU can me met when multiple disabilities result from a common etiology. Here’s how that looks based on a recent case that I won at the Board of Veterans Appeals.
A Veteran had a combined rating of 70% with the following service-connected impairments:
30% Post Splenectomy
20% Healed lumbar fracture
10% Hypertension
10% Cerebral Vascular Accident (“CVA”)
10% Scar secondary to CVA
10% Chronic GI issues secondary to CVA
10% Left upper extremity weakness secondary to CVA
10% Adjustment disorder secondary to CVA
0% Healed fractured ribs
So, he had the combined 70% but not one impairment rated at 40%. The regional office denied TDIU because they found that he did not meet the schedular requirements. However, they overlooked 38 CFR §4.16(a)(2). In this Veteran’s case, using simple math, he had a rating of 60% that all stemmed from a single etiology – his hypertension.
Using this Regulation, the Board of Veteran’s Appeals granted Veteran’s claim for TDIU. This Regulation is often overlooked when Regional Offices decide claims for TDIU so it is important to exercise appeal rights and keep fighting.
If you have questions about Individual Unemployability or any other questions regarding VA disability benefits, please contact the experienced Veterans’ disability attorneys at Gardberg & Kemmerly, P.C. today for a free case evaluation. Gardberg & Kemmerly serves Veterans across the United States from their home office in Mobile, Alabama.