Appealing a Total Disability Individual Unemployability (TDIU) Denial
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 Denial
Medical records submitted in an initial application for TDIU rarely contain the information needed to qualify a veteran for 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 VA, he or she 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.
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
Every TDIU case is different, and there are a lot of common mistakes that veterans make when applying for TDIU and when appealing VA’s decision to deny benefits. For example, a former servicemember may fill out the appeal form and turn it in without understanding what restrictions are placed on the type of appeal they choose, such as 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.
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 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.
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.
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 already service-connected. 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.
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 that serves as the foundation for a strong application.
Entitlement to TDIU is based on a combination of medical and vocational evidence. Most veterans do not obtain or do not have any vocational evidence in their file. VetLaw’s team of attorneys 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 sometimes be the type of evidence which tips the scales in favor of winning entitlement to TDIU.
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 VA.
VA does not treat these claims the same as many others, as there is more of a burden on a veteran to show why they are entitled to TDIU disability compensation. For this reason, it is best to work with a VA-accredited attorney who can advise you on the mistakes to avoid when applying for TDIU disability benefits.
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, a member of our team can review what is already in a veteran’s file as well as the ratings they are receiving and 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 by filling in some of the gaps in information and correcting any errors that may be present in a veteran’s record. This can help avoid mistakes that would otherwise prolong the TDIU application process.
The TDIU Appeal Process
Under the old appellate system, known as legacy appeals, which is now technically closed for new appeals to be filed, former service members who received a denial of TDIU only had 60 days to file an appeal. Now, veterans generally have one year after receiving a denial letter to file any appeal with VA thanks to the Appeals Modernization Act. However, it’s generally a good idea to not wait the full year before initiating an appeal, since VA won’t start working on a TDIU appeal until the proper form is filed.
At the same time, there’s a lot of information a veteran could gather during that one year to support an appeal, so 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 TDIU Appeal Success Rate?
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?
The Board of Veterans’ Appeals (BVA) releases quarterly data that outlines the number of appeals filed in each category and the success rate of these appeals. This data is broken down by decisions made through its Legacy process and decisions made through the Appeals Modernization Act (AMA) process. By the end of the 2023 fiscal year, the BVA issued decisions on approximately 103,000 appeals. 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.
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, fully understand the requirements of the process, and ensure that you work with an accredited attorney.
Veterans who are experiencing extreme financial hardship, terminal illness, or certain conditions may request priority processing to expedite their claim. 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 is required to apply for priority processing.
The Importance Of VA Accredited Representation For Your TDIU Appeal
Receiving a denial letter from VA does not mean that your claim is over. A VA accredited lawyer can help you review your case and file an appeal to obtain the TDIU benefits you are entitled to. For help with understanding what to do after a rejection from VA, reach out to a TDIU appeal lawyer from our firm today.
Frequently Asked Questions
How long does it take to get approved for TDIU?
Depending 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?
In general, the disability rating you have received from the VA 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.
A Total Disability Individual Unemployability Lawyer Can Help
It would be beneficial for someone who is appealing VA’s decision on their eligibility for TDIU to consult an experienced lawyer first because understanding the reason for the rejection and filing an effective appeal can be difficult without legal assistance. To be successful on an appeal, a veteran should understand the reasoning behind why VA denied them in the first place and 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 because the rationale used to deny TDIU is often unclear or simply a boilerplate rejection. Many veterans simply file an appeal and write a statement, but 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 TDIU appeals lawyer from our firm as soon as possible to improve your chances of success.
