Editor’s Note: This article was originally published on Veterans Law Blog, the largest and longest running blog on veterans benefits, written by VA-accredited attorney Chris Attig.
The phrases “100% disabled” or “total VA disability ratings” get thrown around a lot in veterans disability benefits claims.
Problem is, that phrase doesn’t always mean the same thing to everyone. In fact, it can mean several different things in at least five different types of service-connection claims.
Let’s see if we can clear some of the confusion up.
There are many paths to a 100% rating.
The idea of a total VA disability rating starts from the same point:
Total (100%) disability ratings are assigned “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation,” according to the Department of Veterans Affairs’ code of federal regulations. See, for example, 38 C.F.R. § 3.340(a) (2013).
There are five ways to get there:
Total disability based on 100% schedular rating. When the veteran’s service-connected condition meets the 100% impairment rating requirements found in Table 4 of 38 CFR, they receive a 100% schedular rating.
Total disability based on schedular Total Disability/Individual Unemployability, or TDUI. When a veteran has one service-connected condition at 60%, or a total rating of 70% with one being at least 40%, the veteran can request a 100% schedular TDIU rating.
Total disability based on extra schedular TDIU. When a veteran is service-connected for one or more conditions, but is not able to secure substantial gainful employment, he/she can seek an extra-schedular TDIU rating of 100% even if their ratings don’t reach the schedular TDIU requirements above.
Total disability based on an extra-schedular rating. If the VA schedule of ratings does not adequately compensate a veteran’s service-connected disability, they can seek a 100% extra-schedular rating. This is not the same as extra-schedular TDIU.
Temporary total disability based on hospitalization. Generally speaking, this is awarded when a veteran is hospitalized for a service-connected condition and for the six months following that hospitalization.
A claim for increase is also a claim for TDIU when there is evidence of unemployability.
In the Rice v. Shinseki case, the federal circuit held that a veteran’s request for a higher disability rating, coupled with evidence indicating that the veteran’s ability to work was “significantly impaired” by his or her service-connected conditions reasonably raises the issue of entitlement to TDIU as an alternative basis for increased compensation.
This type of claim is an inferred claim and should be considered by the VA regional office whether the veteran specifically asks for it or not.
What does that mean in practical terms? Depends on where you are in your case.
When filing a claim for increase, if you are unemployable because of the service-connected condition, regardless of the percentage, include VA Form 21-8940 and specify that you are seeking TDIU in addition to the claim for increase for that condition. Include all service-connected conditions that impact your ability to get employment.
When arguing that the VA wrongly denied a claim, look in your claims file for references you made to being unemployable or unable to get employment because of a service-related condition, and then you could argue that the TDIU claim is reasonably raised by the record.
Extra schedular TDIU is not an extra-schedular rating.
Adding more confusion to the mix, there are two totally different types of “extra-schedular” ratings.
The first is a 38 CFR 3.321(b) extra-schedular rating.
This type of extra-schedular rating has NOTHING to do with your employability; it is available “in exceptional cases where the [normal schedule of ratings] is inadequate.”
To determine whether a 3.321(b) extra-schedular rating is warranted, the VA must determine that your schedular rating does not reflect your actual level of disability. Specifically, you have an “exceptional disability picture” that the normal VA ratings do not contemplate.
The second type of extra-schedular rating is extra-schedular TDIU, and it has everything to do with your unemployability.
Extra-schedular TDIU is governed by 38 CFR 4.16(b) and is totally separate from the consideration of an extra-schedular rating under 3.321(b).
A key difference, but not the only difference, is that extra-schedular TDIU requires evidence that you are unemployable.
The VA will deny your claim for TDIU, administratively, if you don’t file the 21-8940.
I see this happen so much. Veteran claims unemployability or TDIU, and the VA actually catches the inferred claim. They send a letter saying, essentially, send us a copy of VA Form 21-8940. The vet never sends it in.
The VA has an internal policy of an administrative denial of a request for TDIU if the veteran fails to send in VA Form 21-8940. And they usually don’t give a second warning.
If your request for TDIU was administratively denied, what can you do?
Send in the VA Form 21-8940 within a year of the VA’s initial request for the form, and your claim should get processed properly (knowing full well that the VA rarely does what it should).
The VA will not give you an exam for a TDIU claim unless you specifically identify the medical condition that led to the unemployability.
Hell, they may not even give you the exam anyway.
But the important point to note here is that you should list on VA Form 21-8940 every single medical condition that is, or that you believe should be, service-connected that you believe plays a role in rendering you unemployable.
The VA may not give you a compensation exam on each of those conditions, but at least you’ve laid the groundwork for arguing later that the VA failed to fulfill its duty to assist if your claim is denied.
And, by the way, in about half of the cases where the VA says that the veteran never submitted a VA Form 21-8940, I’ve found that they have already submitted at least one copy of the form.
How do you find out if you submitted one and the VA is just not seeing it?
Get a copy of your claims file; it’s the most important document in your VA claim.
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