Veterans who sustained a disabling service-related injury or health condition may qualify for veterans’ disability benefits. Injuries and health conditions are service-related when they occurred on active duty and were caused by military service. Most injuries are service related that occur during active duty unless they were self-inflicted or caused by the service member’s own misconduct.
Disability benefits are based on disability ratings. Those ratings are meant to reflect the impairment of the veteran’s earning capacity. While a disability rating is largely based on medical records, a veteran who does not have a total disability rating may be entitled to the same benefit that a totally disabled veteran would receive if the veteran’s disability prevents the veteran from earning any income. The testimony of a vocational expert is essential to making a successful claim for benefits in those cases.
VA Disability Ratings
Disabilities are rated by the Veterans Administration (VA). The rating is based on medical examinations. It quantifies the degree of the veteran’s current impairment that is caused by the service-related injury or health condition.
Ratings are based on a set of schedules that, according to VA regulations, reflect “the average impairment in earning capacity in civil occupations resulting from disability.” Disability ratings are rounded to the nearest 10%.
A total disability rating is a rating of 100%. Most disability ratings fall within the range of 10% to 30%. Regulations permit a total disability rating only when it would be “impossible for the average person” with the same disability “to follow a substantially gainful occupation.” In other words, only an impairment that would prevent an ordinary person from doing any kind of work for wages is regarded as a total disability.
Veterans do not necessarily need to have a 100% disability rating to receive the maximum disability benefit. The maximum benefit is also available to a veteran who has a Total Disability Individual Unemployability (TDIU) rating. A veteran can receive a TDIU rating based on “unemployability” even if the veteran has a disability rating of less than 100%.
A veteran can qualify for a TDIU rating by proving that that veteran is unemployable, but only if the veteran’s disability rating makes the veteran eligible for TDIU status. To be eligible, a veteran must have a single disability rated at 60% or higher, or multiple disabilities that combine to create a disability rating of 70% or higher, provided that one of the disabilities is rated at 40% or higher.
The VA’s regulations determine whether multiple disabilities should be counted as a single disability. For example, multiple disabilities that resulted from a single event are counted as a single disability. When multiple disabilities are treated as a single disability, a disability rating of at least 60% will make a veteran eligible for a TDIU rating.
When a veteran’s disability rating makes the veteran eligible for a TDIU rating, the VA determines whether the veteran qualifies for TDIU status. While the disability rating is based on medical evidence, the TDIU rating is based how the disability affects the veteran’s ability to work. The VA assigns a TDIU rating to an eligible veteran if it determines that the veteran is unable to find or hold a “substantially gainful occupation” because of the veteran’s service-related disabilities.
To be “substantially gainful,” the employment must provide an annual income above the poverty level. When employment income above the poverty threshold is earned in a family business or a sheltered workshop, the income is not regarded as “substantially gainful.” The ability to hold a full-time job that pays minimum wage, on the other hand, will disqualify a veteran from TDIU benefits.
The VA ratings board is required to consider several factors when it decides whether to award a TDIU rating. Those factors include:
- the nature of the veteran’s disabilities;
- the veteran’s education;
- the veteran’s vocational skills;
- the veteran’s employment history before becoming disabled;
- the veteran’s employment history after becoming disabled; and
- whether the veteran was fired from one or more jobs after becoming disabled and the reasons for the employment termination.
A successful claim for TDIU benefits therefore requires a veteran to submit information about each factor. Hiring a vocational expert to analyze that information and to provide an opinion about employability gives veterans the best chance of receiving TDIU benefits.
The Impact of Vocational Experts
Vocational experts are able to analyze each of the relevant factors and provide opinions as to whether “substantially gainful” jobs are available in the labor market that the veteran would be able to perform in light of those factors. That analysis is vital to a successful claim.
Medical records alone will not usually persuade the VA to grant a TDIU claim. The VA will often presume that any veteran with less than a 100% disability rating is capable of earning minimum wage. Yet many disabilities have an impact on employability in ways that medical records fail to reflect.
A disability may impair the ability to communicate effectively, to deal with stress, or to concentrate. Medications used to control pain might also affect the ability to remain alert and follow instructions. Those issues might have a serious impact on employability, but they will not show up in medical records.
Vocational experts use medical records to identify physical and mental limitations that impair the ability to work. They then consider information they obtain from the veteran and employers who discharged the disabled veteran. Vocational experts identify jobs, if any, that can realistically be performed by a person with the veteran’s educational history, skills developed from work and military service, and physical or mental limitations that result from the disability or treatment.
Vocational experts survey the job market to ask whether jobs that the veteran might be able to perform are available in substantial numbers. A job market analysis cannot be conducted on the basis of medical records alone. Vocational experts provide important information to support TDIU benefit claims that the VA would not otherwise consider.