TDIU

1. SUCCESSFUL TDIU CLAIMS:
EVIDENCE MATTERS
National Association of County Veterans Service Officers
2019 CVA Training – Cleveland, OH
Presenter:
Katrina J. Eagle, Esq.

2. Total Disability Ratings per VA’s SRD
38 C.F.R.§4.15:
“The ability to overcome the handicap of
disability VARIES WIDELY among
individuals. The rating, however, is based
primarily upon the AVERAGE
IMPAIRMENT IN EARNING
CAPACITY, that is, upon the economic
or industrial handicap which must be
overcome and not from individual success
in overcoming it.”

3.  38 C.F.R.§4.15 cont’d:
“… full consideration must be given to
unusual physical or mental effects in
INDIVIDUAL CASES, to peculiar effects
of occupational activities, to defects in
PHYSICAL OR MENTAL endowment
preventing the usual amount of success in
overcoming the handicap of disability and
to the effect of combinations of disability.
Total disability will be considered to exist
when there is present any impairment of
mind or body which is sufficient to render
it impossible…to follow SGE.”
TDIU

4.  38 C.F.R.§4.16: Total disability ratings
for compensation based on
unemployability of the individual
“Total disability ratings for compensation
may be assigned, where the schedular
rating is less than total, when the
disabled person is, in the judgment of the
rating agency, UNABLE TO SECURE OR
FOLLOW A SUBSTANTIALLY GAINFUL
OCCUPATION as a result of service-
connected disabilities.”
TDIU

5.  Unemployability – 38 C.F.R.§4.16(a)
 Eligibility requirements (Schedular):
• One disability rated at least 60% OR
• Multiple disabilities, with one
disability rated at least 40%, and a
combined rating of at least 70%.
• And, “Marginal employment
SHALL NOT be considered
substantially gainful employment.”
TDIU

6.  The following are considered to be one disability:
 Disabilities of one or both upper
extremities, or of one or both lower
extremities, including the bilateral factor
 Disabilities resulting from a common
etiology or a single accident
 Disabilities affecting a single body system,
e.g., orthopedic, digestive, respiratory,
cardiovascular-renal, neuropsychiatric
 Multiple injuries incurred in action
 Multiple disabilities incurred as a prisoner
of war
Example: if a veteran suffers from several service-connected heart
disabilities such as congestive heart failure and hypertension,
the combined rating for these disabilities need only be 60% to
qualify for TDIU
TDIU

7.  VA May Not Consider in TDIU Claims:
 The veteran’s age
 The veteran’s non-service-connected
disabilities
The VA must provide a clear explanation of the
current degree of unemployability
attributable to service-connected
conditions as compared to the degree of
unemployability attributable to non-
service connected conditions (medical
opinion may be necessary)
TDIU

8.  Unemployability – case law
 VA must consider the claimant’s
work history, education, and
training, and cannot reject a claim
“without producing evidence … that
the veteran can perform work that
would produce sufficient income to
be other than marginal.” Beaty v.
Brown, 6 Vet.App. 532, 537 (1994).
TDIU

9.  Unemployability – case law
 The unemployability determination is
based on the effect of service-
connected conditions only.
 A Social Security determination is not
binding on VA (and vice-versa), but it
is “relevant to the determination of
[the veteran’s] ability to secure and
follow a substantially gainful
occupation.” Murincsak v. Derwinski, 2
Vet.App. 363, 370 (1992).
TDIU

10.  “Marginal Employment”
 Can establish marginal employment
either by demonstrating income less
than the poverty threshold or by the
facts of the case
 The facts or evidence must establish
that the Veteran is incapable of securing
or following SGE
TDIU

11. Extraschedular TDIU
38 C.F.R.§4.16(b): “… all veterans
who are unable to secure and follow
a substantially gainful occupation
by reason of service-connected
disabilities SHALL be rated totally
disabled.” (emphasis added).

12. 38 C.F.R. § 4.16(b):
Veterans who are unemployable due
to SC conditions, but don’t meet the
% requirements, should be referred
to Compensation Service Director for
extraschedular TDIU consideration.
What if the Director denies
extraschedular TDIU?
TDIU

13. Wages v. McDonald (2015):
If Comp. Service Director denies extra-
TDIU, the Board is not bound by the
Director’s denial.
The Board must refer case to Director first,
but thereafter, the Board has full authority
to review the issue de novo and award
extraschedular TDIU per 38 C.F.R. 4.16(b).
TDIU

14. Withers v. Wilkie (Aug. 10, 2018)
When a Veteran’s ability to perform
“sedentary work” is a basis for the Board’s
decision, the meaning of sedentary work
must be determined from the particulars of
the medical opinion(s) in which it was used.
The Board must explain how SW factors
into the V’s overall disability picture and
vocational history, and V’s ability to secure
or follow substantially gainful occupation.
COURT CASES – TDIU

15. 38 C.F.R. § 4.16(a):
TDIU is available for veterans who are
“unable to secure or follow a substantially
gainful occupation as a result of service-
connected disabilities.”
“Sedentary work” is not a listed factor in
4.16(a)!
“Sedentary work” not defined in any
VA statute or regulation.
COURT CASES – TDIU

16. 38 C.F.R. § 4.16(a):
VA has not proposed, and CAVC has not
adopted an interpretation of 4.16 that a
Veteran’s ability to “secure or follow
substantially gainful occupation” is
determined solely or primarily by V’s
ability to perform sedentary work.
When assessing for IU, Board “must
take into account the individual V’s
education, training, and work history.”
COURT CASES – TDIU

17. Withers v. Wilkie (Aug. 10, 2018)
“Before the Board can rely on a VA
examiner’s finding that a Veteran is capable
of sedentary work to deny IU, it must also
ensure that the finding is consistent with
medical evidence as a whole.”
Sedentary work is not an explicit IU factor,
but if the Board denies IU due in part to SW,
then it must explain how it interprets that
concept in the context of that case.
COURT CASES – TDIU

18. Withers v. Wilkie (Aug. 10, 2018)
To be clear, the concept
“sedentary work” is absent from
4.16 and thus, is not necessarily
part of a proper TDIU analysis.
COURT CASES – TDIU

19.  Sedentary work can require:
 Communicating, remembering, following
instructions, using judgement, adapting to
change, and dealing with co-workers,
supervisors and the public
 Experience with computers, data entry,
typing, customer service or research, writing
and analysis
 Sitting or standing for prolonged periods
 Loss of fine dexterity
Does the veteran’s disabilities OR
educational/occupational limitations preclude
any of the above???
TDIU

20.  “Sedentary work” development
 Lay statements showing the need for frequent
breaks and difficulty sitting for long periods of
time
 Medical records showing pain while sitting for
long periods of time
 Medical and/or Vocational reports based on a
review of the record
 Veteran’s employment history and education -
are skills transferable?
 Can Veteran work more than “marginal’
employment?
TDIU

21. TDIU & “Substantially Gainful Employment”
Ray v. Wilkie, CAVC no. 17-781 (Mar. 14, 2019)
VA argued SGE is undefined on purpose;
CAVC rejected nebulous concept without more
VA has not defined “SGE,” so the CAVC
used Social Security regulation as guidance.
The definition has two components:
economic AND non-economic.

22. TDIU & SGE
Ray, continued:
Economic = occupation earning
more than marginal income (outside a
protected environment) as the U.S.
Dept. of Commerce defines as poverty
threshold for one person.

23. TDIU & SGE
Ray, continued:
Non-economic factors
the veteran’s history, education, skill, and
training;
the veteran’s physical ability (exertional and
nonexertional) to perform work (sedentary,
light, medium, heavy, or very heavy); and
the veteran’s mental ability to perform regular
work.

24. TDIU & SGE
Ray, continued:
Physical factors may include but are
not limited to: limitations concerning
lifting, bending, sitting, standing,
walking, climbing, grasping, typing,
reaching, auditory and visual.

25. TDIU & SGE
Ray, continued:
Mental factors may include but are
not limited to: limitations concerning
memory, concentration, ability to
adapt to change, handle workplace
stress, get along with coworkers, and
demonstrate reliability and
productivity.

26. XTDIU
The decision to refer for extraschedular
TDIU consideration is not binding – but
before the Board can deny E-TDIU, it
“must provide adequate reasons or
bases for deviating from its earlier
referral decision.” Ray v. Wilkie *2.
Decision to refer & award are based on
very different standards.

27. XTDIU
Decision to refer “addresses whether
there is sufficient evidence to
substantiate a reasonable possibility that
a veteran is unemployable by reason of
his or her service-connected disabilities.”
Ray v. Wilkie at *7.

28. XTDIU
The Board must adequately explain “its
reasoning when a factual finding made at
the referral stage comes out differently at
the review stage.” Ray v. Wilkie at *8.
Factors include:
 “the certainty or complexity of factfinding in
the initial referral decision” and
 how much the record has changed since
referral.

29.  VA Must Consider in TDIU Claims:
 The veteran’s educational and
occupational history when determining
whether the veteran’s service-
connected disabilities preclude him or
her from securing or following
substantially gainful employment
 VA may not “merely allude to
educational and occupational history
without attempting to relate these
factors to the disabilities of the veteran”
(Cathell v Brown)
TDIU -- Recap

30.  VA Must Consider in TDIU Claims:
 When the VA has been put on notice that the
veteran is receiving Social Security disability
benefits it is obligated to obtain any relevant
SSA records because SSA unemployability
benefits are relevant to the determination of
the veteran’s ability to secure a substantially
gainful occupation under §4.16
 TDIU determinations are made by a
VA adjudicator, not a medical
examiner
 However, the rater should render an opinion
based on all of the lay, medical and vocational
evidence of record
TDIU -- Recap

31. • Doctors are qualified to define physical or
mental limitations caused by a condition, but
have no expertise in translating this info into
the degree of impact on the ability to work,
particularly when dealing with combination of
physical and mental limitations.
• Claims for TDIU can benefit from a
professional opinion from a vocational expert
who can determine whether the veteran is
qualified in education and experience for the
type of job that he is medically fit to perform
(e.g. “sedentary employment”)
• And, or consider VA’s Voc Rehab Program
TDIU -- Recap

32. ADVOCACY POINTS:
Ask the veteran about the nature of his/her
employment and accommodations made by employer.
VA must consider combined effect of multiple
conditions when assessing entitlement to
extraschedular TDIU.
If RO denies IU based on “sedentary work”, appeal to
BVA and list all relevant factors that conflict with SW
finding.
Use the factors listed in Ray (p17) when explaining
why the Veteran does not have the physical or mental
abilities for SGE
TDIU -- Recap

33. Questions?
Feel free to contact us:
Katrina J. Eagle
T: 858-549-1561
katrina@eagleveteranslaw.com
Jim Radogna
T: 858-549-1561
jim@eagleveteranslaw.com
TDIU