In most veterans disability cases where a veteran is not working he or she is likely entitled to a benefit called total disability based on individual unemployability. The biggest hurdle for most veterans becomes proving that it is the service connected disabilities that they have that prevent them from obtaining and maintaining substantial gainful employment. According to the standard definition of TDIU found in the VA manual M21-1 VA provides the following definition of TDIU as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides.”

The important take away from this definition is that any earnings below the poverty threshold set by the U.S. Department of Commerce, Bureau of the Census does not count as substantial gainful employment but is rather considered marginal employment. In 2021 (the most recent year in which data is available) the threshold was 13,300. Regardless, the real questions is why does all this matter and how would having an attorney practicing VA disability law improve my odds of obtaining this benefit.

The answer, from my experience in practice, is that the nuances of the benefit are not always well understood by either the VA or the veteran attempting to obtain the benefit on his or her own. For example, I see it all the time were a veteran has worked only in manual labor type jobs for his entire life like construction. The veteran will have a bad lower back (lumbar spine) disability with radiculopathy in his lower extremities. Technically the VA will make the argument that this veteran is not prevented from doing sedentary work because of his back. This might be true but it ignores a crucial detail which is the veterans work history. Thus if veteran X has a bad back and say that back prevents him from moving boxes or work construction or whatever other labor intensive career path he has followed, than he or she might still be entitled to TDIU regardless of whether or not he can do sedentary work. This is because the veterans work history does not lend itself to sedentary types of occupations easily. It might not guarantee a win when considered but a good attorney can make a good argument based on these facts, which should persuade the VA to find in favor of the veteran.

There is one other factor the VA needs to consider other than employment history, and that is educational level and special training. If you the veteran have a lower level of education say only high school, than it can be used in the argument that a sedentary job is unobtainable, because most sedentary work is done by college educated individuals. While this is not an absolute truth, it is true that most jobs you find that are sedentary and require computer work, also require college degrees. Just to get your foot in the door for an interview. Another factor, often looked over by the VA is special training. Here the veteran might have done special training for a particular career path, which could indicate that he is not equipped to make an easy adjustment. Especially if he has made considerable investments in a career and he is now prohibited from doing such a career.

Finally, we touch on two factors that should not be considered when the VA decides TDIU, and I often see the first factor as one that dissuades some veterans from attempting to get this benefit. That factor is age. I have seen too many older veterans who have been retired for years not consider putting in for TDIU, because they feel that their age would prevent them from getting the benefit. This is 100% not true. Even if your 100 years old you can still potentially get TDIU. The other factor I see VA sometimes reference, but that they should not reference is non-service connected disabilities. The VA has a tendency to find that when a veteran has a non-service connected disability, that this factors into his unemployability, and thus prohibits awarding the benefit because it is not service connected. This leaves

many veteran confused and frustrated, and often they seek the wrong answer which is to try and apply for non-service connected disabilities. To negate the argument that non-service connected disabilities prevent employment. Often there no real basis for these disabilities to be related to the veterans service.

So as you can see, the above factors are really important when it comes to a VA disability claim for TDIU. Many times when I see a denied claim I do see that the VA will allude to the rules and regulations that I cited above. Often times telling me very plainly that they considered the factors, but making no particular findings regarding the factors. This is why veterans need an effective veteran’s disability attorney to help them navigate the maze. Today many accredited attorneys also have access to a system called Virtual Benefits Management System (VBMS). This system allows an attorney access to all files submitted to or sent out by the VA. This means that if you have submitted a private medical records to VA it will be in this file. If you have gone to a VA C&P examination it will be in this file. Any decision you ever received from the VA will be in your file on this system, and an attorney with access to this system can perform a complete review of the claims file (as it is called), and get all the information they need to make the best argument for your entitlement to TDIU.

Without an attorney on your side the only way to access your file is through a request for the claims file which will be sent to you on a CD. This can take a few months to obtain, and then the process of actually sorting the relevant documents from those that are not can be arduous. Especially if you are not trained in what to look for. To the average lay veteran with little experience outside of his or her own claim this task can seem overwhelming. But, for a trained veterans disability attorney like Karl Kazmierczak. Who has done VA disability law since 2007 this task is an everyday part of his work for the past 15 years.

On top of the factors we discussed above, there is much more to consider and honestly we could spend a whole day just discussing the different factors. However, that is a task for another day in potentially more articles to come in the future. Today, we hope that by providing some insight into how VA operates, and how a trained expert veteran’s disability attorney who is accredited with the VA can help you. That you decide to pick up the phone today and call us. Our consolations are cost and obligation free. At the end of the day it is truly an honor for Karl to do what he does every day, both him and the support staff of the office takes great pride in knowing that we get to help our hero’s every day.