Appealing a Total Disability Individual Unemployability (TDIU) Denial
When the VA denies a claim for TDIU benefits, veterans have the right to file an appeal to prove they fulfill the individual unemployability definition and the rating requirements.
Summary
- Veterans can appeal VA decisions, including the effective date of their claim, which can result in retroactive benefits.
- Common reasons for TDIU denials include inadequate medical evidence, failure to meet schedular criteria, and incomplete explanations of how disabilities affect employment.
- Veterans often make mistakes during appeals, such as selecting the wrong appellate path or not providing sufficient evidence. Legal representation can help avoid these issues.
- Working with a VA disability claims attorney can improve the chances of success in TDIU appeals.
- The TDIU appeal process can be lengthy, but expedited processing is available for certain veterans facing hardship or terminal illness.
If your service-connected disability is making it difficult to hold down a job that covers your basic needs, you could be eligible for Total Disability Individual Unemployability benefits from the VA. However, proving to the VA that you qualify for this type of special compensation is a whole other matter.
Like veteran disability claims for standard VA disability benefits, claims for TDIU compensation are often denied at least once, and often more than once, before they succeed.
VetLaw is here to help make this process as efficient and effective as possible for veterans and their families. Our VA-accredited veterans disability appeals lawyers have a reputation rooted in results.
Get in touch with us at (855) 525-1710 or complete a contact form to schedule a free consultation. We’ll work closely with you to appeal a Total Disability Individual Unemployability denial from the VA and secure the appropriate compensation for your service-connected conditions.
Understanding Your Appeal Rights: Fixing VA TDIU Mistakes
A veteran who receives a denial letter from the Department of Veterans Affairs (VA) always retains the right to appeal that decision or any aspect of the decision they disagree with.
Even if you have been awarded Total Disability based on Individual Unemployability (TDIU), you could appeal the effective date and receive retroactive benefits, since one of the most common errors VA makes is assigning the incorrect effective date when an award of TDIU is made.
Reasons For A TDIU Appeal Denial
The following are common reasons why the VA will deny a veteran’s claim for Total Disability based on Individual Unemployability.
Lack of Specific Medical Evidence Demonstrating Impact of Service-Related Symptoms
Medical records submitted in an initial application for TDIU rarely contain the information needed to qualify a veteran for TDIU benefits.
For example, a doctor may note restrictions on employment or other activities, but they are not necessarily detailed enough to explain the functional impact of a disability and how it impacts work. Unless a doctor is writing a report specifically for the VA, they probably did not write those medical records with TDIU in mind.
Additionally, if a former service member does not meet the schedular criteria for TDIU, they may want to consider trying to raise their underlying disability levels before applying for TDIU. If a veteran has disabilities that are not service-connected, VA often uses that as negative evidence as well.
Lack of Clear Explanation of Complicated Work History or Diminished Employability
VA may also deny a claim if a veteran has worked many different jobs in the past. That is not a good reason for VA to deny an applicant, but it happens often.
It is also worth noting that simply failing to adequately explain why a veteran is unable to maintain gainful employment will lead to a denial of benefits. These are things that working on an appeal with an attorney could help solve.
Common Mistakes When Applying For TDIU Appeal
Every TDIU case is different. However, there are a lot of common mistakes that veterans make when applying for TDIU and when appealing VA’s decision to deny benefits.
Choosing an Appeal Path That Stalls or Hinders a TDIU Benefits Claim
For example, a former servicemember may fill out the appeal form and turn it in without understanding the restrictions of the type of appeal they chose. Consequently, they may unintentionally agree to requesting a hearing or waiving the right to submit additional evidence.
A veteran should have a clear understanding of what they are trying to prove on appeal before choosing a specific appellate path. Most veterans will want to choose to submit additional evidence or testify at a hearing, which means that in many cases an appeal to BVA is warranted.
A former servicemember should reach out to a veterans’ service organization or an attorney for assistance in navigating the different avenues available and to obtain advice on which one best suits their specific situation.
Not Hiring a Veterans Disability Appeals Attorney to Handle a TDIU Denial
Just because a former servicemember receives a denial after filing an appeal does not mean their case is over. There are many levels of appeal that can be requested, but obtaining legal counsel can be very helpful during the VA appeals process.
Otherwise, the risk of getting the same answer over and over again is high, since VA typically will not approve a TDIU appeal without additional evidence. The benefit of hiring an attorney sooner in the process rather than later is the possibility of achieving success in less time.
When a lawyer consults with a veteran who has been denied TDIU, they are going to investigate why there was a denial, what evidence might need to be submitted to overturn that decision, and how quickly and easily they could obtain that evidence and submit it to VA through an appeal.
Failing to Consider Which Service-Connected Disabilities to List in a TDIU Appeal
One common mistake that veterans make when applying for TDIU disability benefits is filling out the application form (VA Form 21-8940) without giving themselves enough time to think about what information they want to include.
The form asks a former servicemember which service-connected disabilities prevent them from maintaining substantially gainful employment. However, some veterans only list their worst disability, while others simply put nothing in that box. Some applicants list a couple of disabilities or those which are not service-connected already.
These are all mistakes to avoid when applying for TDIU.
A veteran’s entitlement to TDIU disability compensation can only be based on disabilities that are already service-connected by VA. Listing too few or even too many disabilities, including those that are not already service-connected, could hinder the VA’s processing of the claim and lead to a premature denial of benefits.
Not Leveraging Medical Records and Vocational Evidence Effectively in a TDIU Appeal
Furthermore, veterans commonly fail to review their own medical records to determine whether they should apply for increased ratings or for different disabilities prior to applying for TDIU.
Getting records in order, updating medical documents, and establishing the severity of impairment before applying for TDIU is vital because medical evidence is the foundation for a strong application. That being said, entitlement to TDIU is based on a combination of medical and vocational evidence.
Most veterans don’t obtain or don’t have any vocational evidence in their file. VetLaw’s lawyers can work with vocational experts to review a veteran’s claim file and provide a qualified opinion regarding their ability to maintain substantially gainful employment. This kind of opinion can be the evidence which tips the scales in favor of winning TDIU.
What You Need to Know About the VA TDIU Approval Rate
Understanding the VA TDIU approval rate is crucial for veterans seeking Total Disability based on Individual Unemployability benefits. The approval rate reflects the percentage of applications granted, providing insight into the likelihood of success for new applicants.
Various factors influence this rate. For example, the completeness of medical documentation, clarity of service connection, and accuracy of disability ratings can have an impact.
Veterans can improve their chances by thoroughly preparing their appeal applications and ensuring all required evidence is submitted. Additionally, they can seek assistance from veterans’ advocates or legal professionals if needed.
Staying informed about common pitfalls and VA decision-making trends can help veterans navigate the process more effectively. Consequently, this can potentially increase their chances of a favorable outcome.
What Can I Do To Strengthen My TDIU Application?
There are some common issues that veterans face when pursuing Total Disability based on Individual Unemployability (TDIU) benefits. Many veterans assume that because they are unemployed and receive some disability compensation from the Department of Veterans Affairs (VA), they automatically qualify for TDIU.
However, that is not the case.
A veteran must show that their service-connected disabilities prevent them from maintaining substantially gainful employment in order to qualify for TDIU disability benefits. This is usually the most difficult part of obtaining compensation from the VA.
The VA does not treat these claims the same as many others. Instead, there is more of a burden on a veteran to show why they are entitled to TDIU disability compensation. Therefore, it is best to work with a VA-accredited attorney. They can advise you on the mistakes to avoid when applying for TDIU disability benefits.
A Veterans Disability Benefits Denial Attorney Can Help You Build a Solid TDIU Appeal
There are several ways an experienced TDIU lawyer could prevent or minimize the effects of potential challenges during the process of obtaining disability benefits. For example, our team can review what is already in a veteran’s file and the ratings they are receiving.
Then, we’ll come up with a game plan for developing the evidence prior to applying for TDIU. A former service member who is not represented by an attorney may apply for TDIU without understanding how VA makes the determination to award TDIU benefits.
We can help review everything and file an application for TDIU. Our team will fill in gaps in information and correct any errors in a veteran’s record. This can help avoid mistakes that would otherwise prolong the TDIU application process.
How to Navigate the TDIU Appeal Process
Under the old appellate system, known as Legacy appeals, veterans who received a TDIU denial only had 60 days to file an appeal. The Legacy appeals system is now technically closed to new appeals.
Now, veterans generally have one year after receiving a denial letter to file any appeal with the VA. This is thanks to the Appeals Modernization Act. However, it’s generally a good idea to not wait the full year before initiating an appeal. Remember, the VA won’t start working on a TDIU appeal until you file the proper forms.
At the same time, there’s a lot of information a veteran could gather during that year to support an appeal. Therefore, it’s also important not to rush in filing an appeal if a veteran is trying to obtain additional proof.
Depending on whether a veteran wants to submit additional evidence or not, an appeal may be filed through a higher-level review, a supplemental claim, or the Board of Veterans’ Appeals (BVA), with or without a hearing before a Veteran’s Law Judge.
What Is the VA Disability Success Rate For TDIU Appeal?
When it comes to appealing your TDIU claim, there are numbers and statistics to consider. Appealing a decision is a time-consuming process and the decision to appeal your denied claim should not be taken lightly. You may be wondering: Is it worth it to appeal? If I do appeal, what are my chances of success? What steps can I take to improve my chances?
Recent Outcomes of Legacy and AMA Appeals
The Board of Veterans’ Appeals (BVA) releases quarterly data outlining the number of appeals filed in each category. It also details the success rate of these appeals. This data is broken down by decisions made through its Legacy process and the Appeals Modernization Act (AMA) process.
By the end of the 2023 fiscal year, the BVA issued decisions on approximately 103,000 appeals. Out of these appeals, roughly 70,500 were Legacy cases and 32,500 were AMA cases.
Of the 70,500 Legacy appeals decided in 2023, 34% were granted, 17% were denied, and 44% were remanded (meaning the case was sent back to your regional office for further review).
Of the 32,500 AMA cases, between 33-40% were granted, 14-22% were denied, and 26-39% were remanded depending on whether the appeal was a direct review, evidence submission, or a hearing. Evidence submissions and hearings generally had a higher rate of success.
Does Having Representation Make a Difference in Success Rate?
Many veterans hesitate to seek legal representation to help with their TDIU appeal out of fear that hiring an attorney will be an unnecessary expense.
We would first like to note that federal law prohibits attorneys from collecting compensation for helping with initial VA claims. However, many veterans wait to see if their initial claim is approved or denied before seeking legal representation.
So, is it worth it to hire legal representation?
Based on the BVA’s 2020 Annual Report, veterans who were represented by an attorney were 14% more likely to have their appeal granted. Their likelihood of approval increased by 26.2% without representation to 40.9% with an attorney.
Ultimately, having an attorney by your side makes a quantifiable difference in your TDIU appeal success rate.
How Long Does the TDIU Appeal Process Take?
Looking at the most recent data from the 4th quarter of 2023, we can see that the BVA has approximately 208,000 pending appeals in their docket. 184,000 of these are Appeals Modernization Act (AMA) cases while the remaining 24,000 are Legacy cases.
According to this data:
- Direct review AMA appeals were completed in an average of 314 days (10 months)
- Evidence submission AMA appeals were completed in an average of 695 days (2 years)
- Hearings were completed in an average of 927 days (2.5 years)
The timeline of the TDIU appeal process will depend entirely on which path you choose. Even the smallest mistakes can delay the process or lead to a denial of your appeal. For this reason, it is important to proceed carefully. Ensure that you fully understand the requirements of the process and work with an accredited attorney.
Veterans With Certain Statuses May Qualify for Shorter Wait Times for VA Decisions
Veterans who are experiencing extreme financial hardship, terminal illness, or certain conditions may request priority processing to expedite their claims. If you were a prisoner of war, Medal of Honor, or Purple Heart recipient, or if you are aged 85 or older, you may also qualify for priority processing.
The VA Form 20-10207 and relevant evidence are required to apply for priority processing.
A Total Disability Individual Unemployability Lawyer Can Help
It’s beneficial for someone who is appealing VA’s decision on their eligibility for TDIU to consult an experienced lawyer first. Understanding the reason for the rejection and filing an effective appeal can be difficult without legal assistance.
To successfully appeal, a veteran should understand the reasoning behind why VA denied them in the first place. Additionally, they need to know how to overturn that denial by proving VA’s determination was wrong.
It is not always clear what VA is trying to say in a rejection letter. Frequently, the VA’s rationale for denying TDIU is often unclear or simply a boilerplate rejection. Many veterans simply file an appeal and write a statement. However, that is not always enough to avoid a subsequent denial.
Applicants without legal assistance risk wasting the opportunity to be approved for TDIU earlier on appeal. For this reason, you should contact a VetLaw TDIU appeals lawyer soon to improve your chances of success.
Don’t Underestimate the Importance Of VA-Accredited Representation For Your TDIU Appeal
Receiving a denial letter from the VA does not mean that your claim is over. In fact, for our team of veteran disability benefits denial attorneys, that is just the start of the process. A VA-accredited lawyer can review your case and file an appeal to obtain the TDIU benefits you qualify for.
For help understanding what to do after a rejection from the VA, reach out to a VetLaw TDIU appeal lawyer. You can contact us at (855) 525-1710 or fill out a contact form to schedule a free consultation.
We welcome the opportunity to review your case and answer any questions about the VA appeals process. Additional, we’ll explain your options for appealing a Total Disability Individual Unemployability denial from the VA.
Frequently Asked Questions
How long does it take to get approved for TDIU?
Your wait times will depend on the current backlog of applications and the details of your particular situation. It will likely take the VA around 4-10 months to issue an initial decision on your application.
Is TDIU hard to get?
Generally, the VA disability rating you have will determine how difficult or straightforward getting TDIU benefits will be. Getting TDIU benefits with a schedular rating will be simpler than with an extra-schedular rating.
Why did the VA deny my TDIU?
The most common reason the VA will deny a TDIU application is due to a lack of evidence that the veteran is not able to work. This is why it is so important to provide evidence of your unemployability. For example, submit a statement from a former supervisor or testimony from a vocational expert to support your appeal.
What is Individual Unemployability?
Individual Unemployability is a VA benefits term that means your service-connected disability (or disabilities) are preventing you from maintaining stable employment. For instance, you may have trouble securing a job that can accommodate your mental or physical health issues.
Alternatively, you may keep losing jobs, only do odd jobs, or work in a role that is considered menial employment due to your service-related conditions. For the VA to agree that you meet the standard for Individual Unemployability, you may also need to show that you don’t exceed the income limitations for TDIU benefit eligibility.
