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06 06 2017
A Statement From VAWatchdog Regarding The Discussion To Lower Or Eliminate Certain Veterans Benefits
The Total Disability Individual Unemployability (also commonly called TDIU, IU, UI) benefit is reserved for veterans who aren’t quite
eligible for a total disability benefit by The Schedule For Rating Disabilities but who face significant employment challenges
because of their service connected disabling conditions.
To be rated as TDIU means the veteran is afforded all the additional benefits of any 100% rated disabled veteran. The P & T rated
(not temporary) 100% TDIU veteran receives additional family benefits like CHAMPVA health insurance and educational assistance.
To be eligible for the TDIU benefit the veteran must have at least one single rating of 60% or more or a combination of ratings
with at least one 40% rating and enough additional ratings to come to a 70% overall rating.
These veterans must also prove “unemployability”. In other words, the veteran seeking the TDIU benefit must show that although
he or she has tried to work, they have been unsuccessful at holding gainful employment because of service connected rated conditions.
Many TDIU beneficiaries will also be eligible for the Social Security Disability Insurance (SSDI) benefit as a similar but separate process
through the Social Security Administration (SSA). Current regulations allow veterans to collect both the TDIU and the SSDI benefit
simultaneously. This is often called double-dipping by budget hawks.
The Congressional Budget Office (CBO) has for some time been reviewing the savings to the national budget if this double dipping
were somehow eliminated or changed so that veterans could have one or the other benefit but not both. Different proposals citing
varied ways of accomplishing this have been debated and nothing has been accomplished.
The current administration appears to be serious about somehow modifying or even eliminating the TDIU benefit. We’ve been told
that a change is in the works to modify or delete the benefit that many older veterans rely on so that VA has the funding to
support the expansion of the Veterans Choice Program. I’ve been discussing this with many other advocates...
professionals who are tuned in to how this all works.
We’ve come to a tentative conclusion that current beneficiaries, those who have both TDIU & SSDI (or SSA retirement) would
have to be grandfathered in. This is typical when the government changes rules and regulations. The VA, like everything, is in a constant
state of change. Pensions, Tricare, the GI Bill, VA home mortgage guarantees, and eligibility for health care are in a constant state of change.
My generation didn’t have many of the benefits of the modern generation although many of our benefits (GI Bill) were simpler to use.
Knowing that change happens, how will this affect you if you are a proud double dipper? If you are over 60 - 65 or so
and you rely on your TDIU and your Social Security retirement, what happens to your benefit?
Probably nothing will happen is the best answer we’ve come up with.
Taking away a current benefit requires a lot of action and support from Congress. We don’t think they have the stomach for it.
However, modifying or modernizing veterans benefits going forward is a much simpler proposition. This is typical of how government
regulations change. They grandfather in current beneficiaries so they don’t have to listen to us bitch about it. The change for the
future is made and the next generation have no real idea of what they aren’t getting.
So...if you are a current double dipper (I am too) do your best to not worry too much about this. I know, I get it...it could be
devastating to your life. But we really don’t think the rug will be jerked out from under you.
For those of you who aren’t in the benefits system yet, and for those of you who are active duty, it’s entirely possible
that your benefits may look much different than my benefits. We call that progress, whether we all agree on it or not.
I’m being barraged with emails asking me what to do? I’m even hearing some VSOs or “VA reps” are advising veterans
to file additional claims so that if they lose the TDIU benefit, they can achieve 100% via the more traditional route.
My answer is to do nothing. Don’t lose sleep over this (yet).
Absolutely Don’t begin filing new claims to try and reach 100% schedular...that rarely works and it doesn’t appear that will
help this time. Hang tight. Check the VAWatchdog daily, if there are any developments we’ll be the first to let you know.
Now...read on to learn what I had to say about TDIU in 2010.
Date: September 22, 2010 at 7:24:07 PM EDT
Subject: Strickland on IU
I’m applying for 70% TDIU. Once I’ve received my award, how can I get the TDIU benefit to become a more permanent 100%?
You’ve asked a question I receive dozens of time each month. The TDIU benefit is perhaps the least understood of all VA disability
compensation benefits. You’re in luck. I’ve just received the most recent training letter that VA has on the topic. The TL 10-07 was
distributed 09/14/2010 and will soon affect the VA M21-MR, IV.ii.2.F http://www.warms.vba.va.gov/M21_1MR1.html
If you’ll take the time to carefully read through this column and then the attached document, you’ll be up to date.
I’ll take a moment to remind you that when you are confronting the VA disability compensation process, you’re on your own.
The veteran who educates him or her self on the basics of the rules and regulations of the system is far more likely to be awarded the maximum benefit earned. Veterans who depend on others to help them aren’t likely to fare as well. I often meet veterans who have decided
that they deserve benefits but they want someone else to do the task of applying to VA and completing all the paperwork for them.
They’re frequently angry when the process fails them. I am a champion of the DIY approach. A veteran who spends the necessary time to
read and understand the data I’ll present today will be in control of his future. The vet who decides that this is too much work and way
too much to read and understand is far less likely to achieve a maximum benefit.
I’ll do my best to keep my part of this simple and easy to understand. The Training Letter from VA is a bit more complex.
Total Disability compensation may be achieved on two separate paths at VA. You may be rated as 100% disabled via The Schedule
For Rating Disabilities or you may be rated as 100% disabled via the Individual Unemployability path. A “schedular” rating might be one
where you have a condition that is required to have a 100% rating, for example, you’ve had an AICD implanted to control erratic
beats of your heart. The path to this rating could be that a Vietnam veteran develops DMII. DMII in
the RVN veteran is presumptively rated as service connected. If that veteran then develops heart disease, the heart disease can easily
be proven as secondary to the DMII, thus the heart disease becomes a secondary service connected condition.
Should that heart disease then develop into a condition that medically requires the implanting of an AICD device, the veteran is
rated as 100% disabled by the schedule. Notwithstanding the ratings for DMII and heart disease, the implanting of an AICD is rated as a 100% disabling condition. Interestingly, the schedular rating has nothing to do with a veterans employment. The fact that there is a service
connection to the implanting of the AICD device is the only requirement. That veteran who receives that rating may then become employed
with no fear of losing the rating. Some people who receive such devices do choose to continue to work at gainful employment.
Then there are veterans who have a number of lesser conditions with various ratings but because of the Combined Ratings Table or
“VA Math”, their multiple conditions and ratings don’t add up to 100%.
VA recognizes that many of these veterans, although they are not rated as 100% disabled, aren’t able to seek and keep gainful
employment. In VA terms, they are unemployable due to their service connected disabilities.
VA then looks carefully at these individuals as individuals to assess how much of an effect the combination of service connected
disabilities has had on their ability to earn an income and work as productive citizens. If it is apparent that the service connected
disabilities keep the veteran out of the work force, then VA must assign the rating of 100% disabled due to Individual Unemployability.
It’s worth noting at this point that to be rated as 100% unemployable by the VA system, all the disabilities considered must be service
connected. This is markedly different than the Social Security system and the SSDI benefit. In the SSA system,
one must show that he or she can not reasonably hold employment due to any mix of disabling conditions.
To achieve a 100% rating in the VA system, all disabling conditions that are to be considered must be established as being caused
or contributed to by military service. There are requirements when VA considers the TDIU benefit. The veteran must have a rating
of at least 60% with a single condition rated at 60% or greater or the veteran must have a rating of 70% with at least one of the
underlying ratings at 40%. If those requirements aren’t met precisely the Regional Office may then forward the application for
TDIU to VACO for a decision by the C & P Director. If it is then determined that this individual veteran will not be reasonably
able to achieve gainful employment in the future, the Director may assign the TDIU benefit.Either the schedular or the IU benefit
may be temporary or it may be permanent. If permanence is awarded for either a schedular or an IU 100% rating, the statement,
“Basic eligibility under 38 U.S.C. Chapter 35 is established from [date].” is required. It’s worth noting that many decision letters
don’t include either this statement or any other hints of the permanence of the award and the veteran is left wondering. The a
lternative statement used is “future examinations are scheduled” meaning that the award is temporary or “no future examinations
are scheduled” indication that the award is permanent. The word “permanent” is a misnomer when used by VA. The VA may
elect at any time to review any claim to render a proposal of changes to the claim. There is no protection of a 100% rating until
the rating has been in place, uninterrupted, for 20 years. Other than the path to achieve the benefit and that the IU rated veteran
can not hold gainful employment, the Schedular 100% rating and the IU 100% rating are exactly the same. The monthly benefit
amount is equal across the board. If the rating is said to be permanent by VA all benefits for dependents are exactly the same.
I recommend that veterans do not attempt to change an IU rating to a schedular rating, a practice I see a lot of.
To achieve the 100% schedular rating does not change any benefit that the veteran may receive. Any attempt to modify the IU status
to a schedular status does open one’s folder for review however. This can be a hazardous maneuver as any time the folder is opened
for review, the VA will first look at opportunities to lower the rating. I’ve communicated with a number of veterans who have attempted to
have their IU switched to schedular and who find themselves staring at a letter proposing to reduce their benefit significantly
because of “improvements” to their conditions. I’ve also confronted veterans who wish to trade the IU rating to a schedular rating
so that they are able to preserve their 100% rating as they return full time to gainful employment. There are a few of us who would
gleefully game the system and milk out dollars by deceiving VA about the extent of their disabling conditions. I do not condone
such activity personally and I’m aware of the many checks and balances that VA has in place to prevent such fraud.
The TDIU Training Letter is one of the best I’ve seen. It is comprehensive and provides a number of good examples of how this works.
I’m also including another explanation of the IU benefit via a link below. While this dates from 2005, it continues to be relevant as
Daniel Cooper describes the benefit to members of Congress. You are advised to pay close attention to details in this training letter.
For example, the requirement to complete VA Form 21-4140 is reinforced here. The VA Form 21-4192, “Request for Employment
Information in Connection with Claim for Disability Benefit” is required but it’s noted that, “A TDIU evaluation should not be denied solely
because an employer failed to return a completed VA Form 21-4192.” Perhaps most significantly, “However, as a result of the Rice
decision, a request for TDIU, whether specifically raised by the Veteran or reasonably raised by the evidence of record, is no
longer to be considered as a separate claim but will be adjudicated as part of the initial disability rating or as part of a claim for increased compensation.” Keep reading, continue educating yourself. At the VA Watchdog dot org site you’ll always find the latest
factual and relevant news that you can use. Learn and then DIY...Because nobody cares about your claim as much as you do.