Individual Unemployability Eligibility
Total Disability Based Upon Individual Unemployability
If you can’t work and feel that service related disabilities prevent you from securing and maintaining gainful employment, we would very much like the opportunity to speak with you about how we might be able to help. You could be eligible for total disability based on individual unemployability.
Once you successfully get through the application process for disability benefits with the VA, you will be rated on a scale from 10 to 100 percent disabled. The amount of compensation you receive depends on your rating. A rating of 100 percent will get you full benefits. However, there is another way to receive full benefits without a 100 percent rating and that is a total rating based on Individual Unemployability (IU).
In this scenario, the VA will pay full benefits to veterans who are found to be “unemployable” even if they are rated less than 100 percent disabled. These are disabled veterans who either cannot work or “marginally employed” unable to earn above the annual poverty level because of their service-connected disabilities. Also, veterans working for family businesses, such as on a farm, are considered to have “sheltered employment” and may be eligible for TDIU even if their income exceeds the poverty level.
- You must have one service-connected disability that is rated at 60 percent or higher.
- You must have two or more service-connected disabilities with one rated at 40 percent or higher with a combined rating of 70 percent or higher.
- You must have a group of disabilities that relate to each other. The combined rating of this group will be considered as one disability to establish either the 60 percent or 40 percent disability rating.
- In the event that you do not meet the percent requirements, have an exceptional situation where employment is prohibited as a result of your service connected disabilities. Your advocate can help you determine whether this is applicable to your situation.
If you meet one of the aforementioned, then the evidence must show that you are unable to secure a substantially gainful occupation that either earns above the poverty level set by the U.S. government or is outside of a sheltered working
Your ability to receive Veterans Disability Compensation along with many other benefits administered by the VA depends in large part on whether your disability(y)ies are “service-connected.” Service connection generally means that a chronic disability arose coincidental with military service. The wartime period in which you served may have specific disabling conditions that have been identified as being service-connected. The four most common avenues to service connection are:
1. Direct – the condition was caused by service.
2. Secondary – the condition was caused by or aggravated by service connected disability.
3. Aggravation – the condition was made worse as a result of military service.
4. Presumptive – the condition is caused by or the result of an exposure to a substance like herbicide agents, nerve gas, or radiation during military service.
Veterans who now suffer with an acquired psychiatric condition attributed to their military service (even if not documented or treated several years post service) and served in a war zone, witnessed something horrible, or were the victim of personal assault are entitled to service connection. These are some of the most difficult cases to win and frequently the VA applies a higher threshold than required by law to these cases making it even tougher. Too many of these veterans give up. Gumps Legal Veterans Service can help.
Each disability found to be service connected is assigned an evaluation in increments of 10% starting at 0% up to 100%. These disabilities are then combined (not added) with other service connected disabilities to arrive at a combined evaluation, which corresponds with the VA Compensation Rates table awarding monthly compensation. Additional compensation is extended when a veteran has a combined rating or 30% or more for dependents.
There are several benefits administered by the VA to include medical, educational, and home loan guarantee certificates. More of these benefits become available as your combined rating increases. For example, the surviving spouse of a veteran rated at 100% to include individual unemployability for 10 years or more prior to his death would be entitled to dependency indemnity compensation.
Too often, veterans will accept the VA’s assigned evaluations. A skilled advocate can review these evaluations and consider in context of your situation to determine if it’s a fair evaluation provided under the current regulation. Some disabilities, like tinnitus and hearing loss have a very objective criteria and therefore, are generally correct. Other disabilities are more subjective in nature, like an acquired psychiatric disorder (for example PTSD, anxiety, or depression) residuals of traumatic brain injury, or complications related to diabetes and are frequently incorrect. Gumps Legal Veterans Service can help you determine whether the evaluations are correct and if not, assist you in pursuing the proper evaluation through the appeals process.
The Veterans Administration (VA) provides disability compensation for deserving veterans who have disabilities related to their military service. These conditions include those that developed while serving in the military that were not caused by active duty, and conditions that were caused or exacerbated by military service.
The Veterans Administration recognizes the following list of conditions as having developed in veterans because of their active service in the military. If you believe you have a service-connected condition, you may be eligible for disability compensation benefits.
- Post-Traumatic Stress Disorder
- Traumatic Brain Injury
- Chronic Diseases diagnosed after service
- Amyotrophic Lateral Sclerosis
- Radiation Related Diseases
- Agent Orange Related Diseases
Post Traumatic Stress Disorder (PTSD):
Post-Traumatic Stress Disorder (PTSD) is an acquired psychiatric condition that results after a person has experienced a traumatic event or stressor, like stressors consistent with combat service or personal trauma due to rape or physical assault. The condition can manifest immediately following the stressor or have a delayed onset even years after the stressor.
Service connection for PTSD requires the confirmation of three elements of law. A confirmed diagnosis of the condition, a verified stressor, and a link between the current diagnosis and the in-service stressor.
A veteran that served in a combat has a lower threshold to verify a stressor as it is presumed in cases where certain awards were earned like a Purple Heart Medal, Combat Infantryman’s Badge (CIB) or Combat Action Ribbon (CAR). The minimum threshold to establish a stressor for a veteran who served in a combat zone is to confirm that the unit in which he was assigned engaged with hostile forces at the time he was known to have been attached to that unit. Recently, VA regulations allow confirmation of the stressor will be found when a VA psychologist or psychiatrist opines that the veteran’s reported stressor is consistent with the circumstances of their service.
A veteran who claims their stressor is due to personal assault have a higher threshold to establish a stressor. The VA must investigate for any markers that one would expect after experiencing the event. For example, a veteran who claims to have been raped, certain markers would include report to a medical treatment facility and request a rape kit, to be tested for STD, or a pregnancy test. Other markers might include a request for a transfer from the unit or to be discharged from the service all together. And still other markers include decrease in performance evaluations or an increase in disciplinary problems. All too often, these veterans get discouraged and give up with the process.
We have successfully litigated hundreds of PTSD cases.
Traumatic Brain Injury (TBI):
A growing number of veterans are coming forward with complaints consistent with Traumatic Brain Injury (TBI). The TBI can be obvious, like being knocked unconscious from being proximate to an explosion while others are not so obvious, where the veteran may have been proximate to an explosion but wasn’t unconscious and never really sought treatment. The VA has extended on a presumptive basis that service connection is in order for a veteran known to have suffered a TBI during military service and later develops dementia, Parkinson’s disease, or a seizure disorder.
If diagnosed within one year of separation from service
- Anemia, primary
- Atrophy, Progressive Muscular
- Brain Hemorrhage
- Brain Thrombosis
- Calculi of the kidney, bladder, or gallbladder
- Cardiovascular-renal disease, including hypertension
- Cirrhosis of the liver
- Diabetes mellitus
- Encephalitis lethargic residuals
- Endocarditis (all forms of valvular heart disease)
- Hansen’s disease
- Hodgkin’s disease
- Lupus erythematosus, systemic
- Myasthenia gravis
- Other organic diseases of the nervous system
- Osteitis deformans (Paget’s disease)
- Palsy, bulbar
- Paralysis agitans
- Purpura idiopathic, hemorrhagic
- Raynaud’s disease
- Sclerosis, amyotrophic lateral
- Sclerosis, multiple
- Thromboangiitis obliterans (Buerger’s disease)
- Tuberculosis, active
- Tumors, malignant, or of the brain or spinal cord or peripheral nerves
- Ulcers, peptic (gastric or duodenal)
Amyotrophic Lateral Sclerosis (ALS):
If diagnosed anytime after honorable service in excess of 90 days. Compensation benefits are warranted for the veteran or the surviving spouse for the disability or death due to ALS diagnosed anytime after service.
Diseases Specific to Prisoners of War:
If held captive more than 30 days and diagnosed at any time following separation from service
- Any of the anxiety states
- Dysthymic disorder (depressive neurosis)
- Organic residuals of frostbite
- Post-traumatic osteoarthritis
- Atherosclerotic heart disease
- Hypertensive vascular disease
- Hypertensive heart disease
- Myocardial infarction
- Congestive heart failure
- Beriberi (including beriberi heart disease)
- Chronic dysentery
- Other nutritional deficiency
- Irritable bowel syndrome
- Peptic ulcer disease
- Peripheral neuropathy (except if related to infectious causes)
- Cirrhosis of the liver
- Osteoporosis (on or after September 28, 2009)
Your ability to receive Veterans Disability compensation depends in large part on whether your disability is “service-connected.” The wartime period in which you served or the places you served may have specific disabling conditions that have been identified as being service-connected.
World War II: Exposure to radiation was common due to the extensive experimentation and nuclear testing of the Atomic Bomb. Diseases such as Leukemia, Lymphomas, Multiple Myeloma and Cancers could later manifest in veterans who were exposed to radiation at that time. Click here to read more details about WWII Veterans Disability Benefits.
Korean War: Veterans who fought in the Korean War may have experienced cold-weather injuries and, later on, residual effects of frostbite. Click here to read more details about Korean War Veterans Disability Benefits.
Vietnam: Exposure to Agent Orange, the herbicide used to kill off dense plant life caused multiple conditions in veterans of that war. Twelve specific illnesses have been identified as service-connected disabilities. Click here to read more details about Vietnam Veterans Disability Benefits.
Persian Gulf War and OEF/OIF: Veterans have experienced chronic disabilities resulting from undiagnosed or unexplained chronic multi-symptom illnesses such as joint pain, fatigue, mental problems and headaches of unknown etiology. Click here to read more details about Persian Gulf War Veterans Disability Benefits or OEF/OIF Veterans Disability Benefits.
Post Traumatic Stress Disorder:
Combat-Zone Service: Veterans who served in a combat zone and who have psychological issues like post-traumatic stress disorder as a result of their experiences may be entitlement to service connection. Click here to read more details on disabilities due to Combat Service.
Personal or Sexual Assault: Veterans who suffered personal or sexual assault while in the service and are now suffering the psychological effects, like post-traumatic stress disorder, as a result of that experience may be entitled to service connection. Click her to read more details on disabilities due to personal assault.
World War II – Radiation Exposure
Exposure to radiation was common during this war period and into the 1950s due to the extensive experimentation and nuclear testing of the Atomic Bomb. The following conditions have been identified as service-connected by the Veterans Administration:
- Bile ducts
- Gall bladder
- Primary Liver (except if cirrhosis or hepatitis B is indicated)
- Salivary gland
- Small intestine
- Urinary tract
- Bronchioloalveolar Carcinoma
- Leukemia: all forms except chronic lymphocytic leukemia
- Lymphomas (other than Hodgkin’s disease)
- Multiple Myeloma
Korean War: Effects of Frostbite
Veterans who fought in the Korean War experienced extreme cold-weather conditions that caused severe frostbite of the extremities. Veterans, decades later, are still suffering the after effects of frostbite. The Veterans Administration considers the organic residual effects of frostbite to be service-connected.
Even if you have been previously denied service connection for frost-bite residuals, an advocate may still be able to help. If you are already service connected; but are not in receipt of the 100% compensation rating from the VA, you should certainly contact us to discuss your options.
Vietnam: Agent Orange
Exposure to Agent Orange, the herbicide used to kill off dense plant life, caused multiple conditions in veterans of the Vietnam War. All Veterans who served a single day in Vietnam, are presumed exposed as a matter of law. Some veterans who served in Korea along the DMZ, on air bases in Thailand, or on certain naval ships during the Vietnam War were also exposed. If you believe you were exposed: the following conditions have been identified as service-connected by the Veterans Administration:
- Acute and Subacute Peripheral Neuropathy
- AL Amyloidosis
- B-cell leukemias or hairy cell leukemia
- Chloracne (or Similar Acneiform Disease)
- Chronic Lymphocytic Leukemia
- Diabetes Mellitus Type 2
- Hodgkin’s Disease
- Ischemic heart disease
- Multiple Myeloma
- Non-Hodgkin’s Lymphoma
- Parkinson’s disease
- Porphyria Cutanea Tarda
- Prostate Cancer
- Respiratory cancers
- Soft-tissue Sarcoma (other than Osteosarcoma, Chondrosarcoma, Kaposi’s Sarcoma or Mesothelioma)
The Secretary is constantly considering adding more disabilities to this list. If you have a condition that you feel is related to exposure to Agent Orange and that condition is not listed here, you should contact us to discuss whether you should pursue a claim.
- Campylobacter Jejuni
- Coxiella Burnetii (known as Q Fever)
- Mycobacterium Tuberculosis
- Nontyphoid Salmonella
- Visceral Leishmaniasis
- West Nile Virus
Currently, legislative leaders are considering creating a presumptive list specific to veterans serving in the conflicts of Southwest Asia from 1991 to present. We will continue to monitor the process of these developments.
Disability due to Service in Southwest Asia:
Persian Gulf War, Operation Enduring Freedom (OEF) and Operation Iraqi Freedom (OIF):
Veterans have experienced chronic disabilities resulting from undiagnosed or unexplained chronic multi-symptom illnesses. Veterans who served in the Southwest Asia theater of operations at any time after 1991 to present, are eligible for review under this section. There is two main categories to explore.
1. Undiagnosed condition with multiple symptoms.
2. Diagnosed condition of unknown etiology.
The following conditions have been identified as service-connected by the Veterans Administration:
Symptoms of Undiagnosed Illness:
- Abnormal Weight Loss
- Joint Pain
- Menstrual Disorders
- Muscle Pain
- Skin Disorders
- Upper and Lower Respiratory
- Sleep Disturbances
Unexplained Clusters of Symptoms
- Chronic Fatigue Syndrome
- Irritable Bowel Syndrome
Example, a veteran who served in Iraq from 2003-2004 now suffers with leukemia. The doctors are unable to attribute the leukemia to any known cause. The provisions of 38 CFR 3.317 may provide entitlement to service connection as a result of toxic environmental exposures while serving in Iraq.
Dependency Indemnity Compensation (DIC) is a monthly benefit for the surviving spouse of a veteran that died of a service related disability even if the veteran never filed a claim. DIC may also be awarded when the veteran met one of the following:
- Was rating 100% to include individual unemployability for a period of not less than 10 years prior to death.
- In the case of a former POW, was rated 100% to include individual unemployability for a period of not less than 1 year prior to death.
Given the nature of entitlement to DIC benefits, it is strongly recommended that veteran’s seek to take advantage of their compensation benefits to include pursuing individual unemployability (regardless of age) when they meet the criteria for entitlement. If you are an unemployed veteran (even if you retired) and feel that a case could be made that your service related conditions would prevent you from working, you should consider filing a claim. We can help.
If you are a surviving spouse, even if the veteran never filed a claim, you may still be eligible for DIC benefits, but eligibility will depend on the following possibilities:
- Whether it can be established that his death was due to a disability that is associated with his military service.
- Whether it can be established that a service related disability played a major role in contributing to death.
- Whether it can be established that a service related disability lent assistance to demise by interfering with treatment or rendering the veteran unable to resist death.
If you are a surviving spouse and have been denied DIC benefits and feel that one of these possibilities apply to your case, then you should contact us as soon as possible. Even if the veteran never filed a claim before. The same disability appeals process applies to those denied entitlement to service connection for cause of death.
To be eligible for disability compensation benefits from the Veterans Administration (VA):
- You must be a veteran of the United States military.
- You must have been discharged under conditions other than dishonorable.
- You must have a disability that is service-connected.
You must be a veteran of the United States Military
The Veterans Administration supports American veterans and their families by providing a wide range of programs and services. Disability compensation is given only to deserving veterans who are disabled by injury or illness that was incurred or aggravated by active military service. It is also paid to veterans who become disabled from negligent VA health care or injury resulting from the pursuit of training under vocational rehabilitation.
You must have been honorably discharged from military service
A veteran who has more than one period of service, may be eligible for disabilities from any eligible period of service. A veteran must have served under conditions characterized as “other than dishonorable” to be eligible for VA benefits for disability related to that period of service. An other than honorable (OTH) discharge generally results in a bar to VA benefits for disabilities related to that period of service, but there are a few exceptions. A medical discharge is generally considered an honorable discharge for VA purposes. A bad conduct discharge (BCD) or dishonorable discharge is a bar to VA benefits for disabilities related to that period of service.
You must have a disability that is service-connected
Service connection generally means that a chronic disability arose coincidental with military service. It is important to establish that your injury or illness is service-connected to qualify for disability compensation. The following categories identify service-connected disability:
Direct – The onset of disability occurred coincidentally with active duty military service.
Example: Diagnosis of diabetes mellitus.
Secondary – A current disability caused by or aggravated by another service-connected disability.
Example: Service connected diabetes mellitus contributed to the development of peripheral neuropathy in the lower extremities.
Aggravated – A chronic disability diagnosed prior to military service is aggravated beyond normal progression during military service. Note: the VA cannot rely on the veteran’s statement alone to find a disability existed prior to service. The determination must be based on clear and convincing medical evidence or clearly accepted medical principles.
Example: Pes Planus (flat feet) made worse by the rigors of military training.
Presumptive – A chronic disability that is related to some exposure during military service.
Example: Ischemic heart disease related to exposure to the Agent Orange herbicide used during the Vietnam War.
Paired Organ – A veteran has loss of use of one extremity or organ (i.e. kidney) due to service- connected disability and later develops loss of use of the other extremity organ.
Example: Service connected for right kidney failure, disability or disease of the left kidney will be service connected as long as not intentionally and willfully self-inflicted.
VA Medical Negligence – A disability or death that occurred while a veteran was undergoing VA health care.
Example: Veterans suffers loss of use of his arm as a result of VA surgery where a nerve was accidently cut due to lack of skill.
Injury Resulting from VA Vocational Training – Injury that occurred while pursuing a vocational training plan with the VA.
Can National Guard or Reserve Members Get Disability Benefits from the VA?
Disabilities or diseases that arise coincidental with active duty service are generally service connected as long as there is no clear and convincing evidence that it preexisted service or was due to the veteran’s own wilful misconduct. The rules are quite different for National Guard and Reserve service.
A member of the National Guard or Reserves that suffered from a disability due to trauma while on active duty for training or inactive duty for training status will generally be eligible for service connection, as long as the disability was not due to the veteran’s own wilful misconduct. Generally, you will qualify for disability not found due to wilful misconduct when the following happens while in active duty for training or inactive duty for training status:
- An injury, disease or death occurs while traveling to and from duty
- A traumatic event causes a chronic disability.
- Suffered a cerebral vascular accident, cardiac arrest, or an acute myocardial infarction.
Diseases like diabetes, lupus, or hypertension that happens to develop or is diagnosed while in active duty for training status or inactive duty for training status are not generally subject to service connection based on that service. Please note, that this does not limit service connection for a disease through another avenue of entitlement or as due to active duty service.