What is VA "TDIU" and how does VA use that rating?

I've needed to go into an explanation what VA TDIU is (CLICK HERE for VA's factsheet) but I overlooked doing it until questions arose at Sunday night's United Veterans Coalition banquet in Denver. A gentleman at our table was from Arapaho County and asked me about helping his Army veteran son.

A skillful veteran’s service officer (VFW, DAV, state or county) can advise about eligibility for Total Disability for Individual Unemployability (TDIU, and sometimes just IU) and help one obtain this valuable benefit if qualified. These pros know the mysterious VA bureaucracy and the evidence required to obtain favorable benefit claim decisions for disabled veterans. Their objective for every disabled vet they assist is to get the maximum entitled benefit. And actually, that's VA's goal as well.

The VA requires veterans to prove their qualifications for disability benefits but even then, VA routinely denies legitimate TDIU claims. 

Qualifying for TDIU:

The VA’s Individual Unemployability (TDIU) benefit represents somewhat of a loophole for disabled veterans in the VA system. It allows assigning a total disability rating for compensation (100%) to to a vet when the vet’s actual disability exceeds the VA's rating chart. TDIU was established decades ago when VA appreciated that there were situations where the regular percentage allowed for a disability is inadequate and where the vet's particular disability (regardless of any rating chart) is in fact total. TDIU ratings account for situations where the line-of-duty disability has made employment impossible, making employment impractical. 

Total Disability for Individual Unemployability is based on the vet’s proven inability to maintain “substantially gainful employment” due to a service-connected illness or injury.

VA regulations usually require the vet to have at least one service-connected disability rated at 60% or more. Or, if the vet has multiple disabilities, at least one must be ratable at 40% or more, and in combination the vet’s disabilities confer a combined rating of 70% or more.

Veterans who do not meet the minimum disability percent rating requirements for IU may be considered if they can show exceptional or unusual circumstances, such as that their disabilities directly interfere with their employability or require hospitalization often enough to make steady employment impractical. Or, that a secondary issue such as pain from an SC back injury makes competitive employment painful and unwise to attempt.

The veteran’s claim must show that service-connected disability or disabilities are “sufficient, without regard to other factors, to prevent performing the mental and/or physical tasks required to get or keep "substantially gainful employment.”

“Substantially gainful employment” is defined as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides.”

VA regulations also make it clear that substantially gainful employment is more than marginal employment, which is a secondary standard for evaluating a vet’s earnings. Marginal employment is defined as earning income that does not exceed the poverty threshold for one person as established by the Census Bureau. For 2021, that threshold is $13,100 for an individual under age 65. 

Vets in sheltered work environments, employed by family businesses or self-employed may earn more than marginal employment income and still be considered for IU.

Money earned by participating in the Veterans Health Administration’s (VHA’s) Compensated Work Therapy (CWT) Program is not counted as income for TDIU purposes.

A vet who has a 100% disability rating according to the VA rating schedule is permitted to maintain substantially gainful employment, but an TDIU benefit recipient is not.

TDIU benefits parallel those of 100% schedular. The compensation is the same with identical special allowances for dependents, clothing, aid and attendance, travel, and special monthly compensation. A prepaid $10,000 is available upon application. Rehab, pharmacy, audiology, prosthetics, optometry, and other VA medical care is the same. There are some situations where dental care is also provided. One of the most important benefits for both TDIU and 100% schedular is CHAMP-VA for Tricare-like family medical care. Often with age and increasing difficulties with SC issues, a TDIU-vet will transition into 100% schedular.

 VA TDIU Eligibility Requirements:

Evidence that must be part of a veteran’s disability benefits claim to obtain IU / TDIU benefits includes:

• Medical evidence of the veteran’s current physical and mental condition, e.g., results of VA examinations, hospital reports, and/or outpatient records. As in other claims, the VA may schedule a medical examination if the veteran’s medical evidence is incomplete or inconsistent.

• Employment and work history for five years prior to the date on which the veteran became too disabled to work, as well as for any work performed after this date.

• Forms completed by each employer for whom the veteran worked during the 12-month period prior to the date the veteran last worked.

• Social Security Administration reports if the vet receives Social Security Disability benefits, if the veteran’s other evidence is insufficient to award compensation

• Records from the VA’s Vocational Rehabilitation and Employment Service (VR&E) if evidence suggests rehab was undertaken but unsuccessful or was found to be medically unfeasible. VR&E testing can be requested by any vet enrolled in VA health care. Social Security Disability records are persuasive.

If the TDIU benefit is granted, the vet must complete a VA employment questionnaire each year until the age of 69 to affirm that he or she remains incapable of maintaining substantially gainful employment.

VA disability raters are trained to consider TDIU in exceptional cases, yet about 40% of all totally disabled vets get that rating and 60% or so are 100% schedular. Examiners can't consider the vet’s age or distinguish between retirement and inability due to age as opposed to a true service-connected disability resulting in unemployability.

As in other cases, VA claims examiners may request additional information at any time to supplement or clarify evidence in a veteran’s claim. This, of course, slows the process. Submit as much persuasion as can be gathered!

Good luck with your claim. NOW –  HELP OTHER VETERANS!

American Legion: Twice they helped me with veterans' concerns

Like so many others, I owe a great deal to the American Legion and their dedication of service to veterans and our families.The American Legion got the ball rolling for C-123 veterans and our Agent Orange concerns. In 2012 Dr. Jeanie Stellman and I visited the Legion's DC offices for a meeting with their national leadership. We briefed them on Stellman's research and Air Force materials that established our Agent Orange exposures, and asked the Legion to get behind us with the power of their nearly one million members.

They said yes, and for us to return the next day with a draft resolution to be voted on at their next national convention. Stellman and I wrote it that night on her MacBook Air (my computer was stolen that morning!) the Legion executives accepted it the next morning. Our resolution was eventually approved as Resolution 128 at the 2012 national convention.

The Legion also led in January 2015 after the Institute of Medicine determined we'd been exposed to Agent Orange aboard our aircraft. Along with the rest of the "Big Six" veterans organizations they insisted that VA Secretary Bob McDonald act on the IOM findings, which he finally did on June 19 2015. The Legion also got a bipartisan group of US senators and congressmen to demand Secretary McDonald act, and they withheld all confirmations until VA yielded. 2100 C-123 aircrews and maintainers, and their survivors, got VA Agent Orange benefits that day, with much thanks due the American Legion.

Over the next few years, a number of articles about C-123 veterans appeared in Legion publications. I've gathered them along with Resolution 128 for your review.

In May I asked our local post to initiate a Colorado resolution supporting Gold Star Wives property tax exemption, and it was approved by the entire state organization on June 28. Lesson for me: resolutions are the Legion's slow but steady march towards better veterans benefits.

And again...thanks Legion!

Text of American Legion resolution supporting Gold Star Wives property tax exemption

WHEREAS, Since the Revolutionary War, more than one million American soldiers have died in battle and military conflicts; their families, who have endured these losses and the accompanying grief, are known as Gold Star Families and their spouses as Gold Star Wives; and Gold Star Families are a living legacy of each fallen soldier to help us all remember and honor these heroes by name and deed, and  

WHEREAS, on April 5, 2021 the Seventy-third General Assembly of the State of Colorado issued Senate Joint Resolution 21-010, resolving on behalf of the citizens “That we, the members of the Colorado General Assembly, honor the pride and the pain of the parents and partners and children and siblings of our fallen heroes who lost his or her life serving our country and protecting our freedom; and recognize the families of these proud patriots with an expression of profound gratitude and respect” and 

 

WHEREAS, in 2006 the citizens of Colorado overwhelmingly approved by amendment to the State Constitution Article X Section 3.5 the Disabled Veteran Property Tax Exemption for totally disabled service-connected military veterans; and in 2014 the Colorado Legislature expanded the Senior and Veteran Property Tax Exemption to include surviving spouses by HB14-1373, and 

 

WHEREAS, the sacrifices of Gold Star Families are to be honored with respect as well as material support and 

 

WHEREAS, surviving spouses of servicemembers who die on active duty are only by the technicality of their servicememember’s death not being in receipt of the exemption thereby denied the exemption, and 

 

WHEREAS, this distinction between survivors of totally disabled veterans already in receipt of the Disabled Property Tax Exemption and survivors of active duty servicemembers (“Gold Star Wives”) denied the exemption solely due to the death of their spouse while in service is an offense to the honor of the State, contrary to the spirit expressed by the Seventy-third General Assembly of the State of Colorado Senate Joint Resolution 21-010, and contrary to the intentions of Colorado citizens’ approval of Article X Section 3.5 as presented in the 2006 Referendum E, and  

 

WHEREAS, the American Legion Department of Colorado and the Gold Star Wives are both member organizations of the United Veterans Coalition of Colorado, and  

 

WHEREAS, either a legislative or constitutional amendment process being necessary, it may suffice that a redefinition of “disabled veteran” to include a death on active duty, or other such procedure as the General Assembly shall direct; and that surviving spouses of Colorado Air and Army National Guard members who die while activated by the Governor for State service should also receive such respect and benefits, it is therefore  

 

RESOLVED, by the American Legion Department of Colorado that inclusion of unremarried Gold Star Wives and unremarried surviving spouses of Colorado National Guard members who die while activated by the Governor for State service, be included in the Disabled Veteran Survivor Property Tax Exemption because it is both necessary and proper, that the United Veterans Coalition be informed for this to be part of its state legislative objectives until acted upon with a goal of implementation before 2023. 

June 26: American Legion Votes Support of Gold Star Wives Property Tax Exemption

This morning the Department of Colorado of the American Legion, meeting at their annual conference in Colorado Springs, approved a resolution for Gold Star Wives inclusion in the Disabled Veteran Property Tax Exemption program.

The resolution initiated with the Legion post in Fort Collins. 

The Legion's resolution urges UVC to include the issue in its 2022 state legislative agenda. The coalition's agenda is yet be finalized. Obviously the legislature itself must agree to a solution during the next session.

Left unclear is whether a constitutional amendment or an act of the legislature will be the preferred approach.

The Legion's approved resolution joins that of the Military and Veterans Affairs Committee of the Colorado Bar Association, plus our own from the C-123 Veterans Association. It remains for the Gold Star Wives, not third parties, to actually initiate UVC consideration of this issue.
(click: resolution of American Legion Department of Colorado)

Colorado Legislature Wraps Up, Gets Set for 2022

All hope for Gold Star Wives' property tax exemption rose suddenly during the last few days of the 2021 legislative session...and were shot down even faster! The House passed HB21-1002 unanimously but the Senate Veterans and Military Affairs Committee destroyed hopes for this legislation with just a few minutes conversation among the Democrats. Party line vote: Dems=NO, GOP-YES, but the measure failed with Dems in the majority.

Oh, dear. I'm afraid we're back to the old drawing board.

 

United Veterans Committee Crafting State Legislative Agenda for 2022. TDIU Veterans Issue Proposed to the Committee

Among many other proposals, the United Veterans Coalition state legislative affairs committee is considering vets rated by VA as 100% Total Disability for Individual Unemployability veterans (TDIU) for the Disabled Veteran Property Tax Exemption. This issue is being weighed for inclusion in the UVC 2022 legislative agenda to be firmed up this summer for the next legislative session.

The decision will be based on input from all levels of UVC organizational members. This is an issue I've advocated about for six years. I ask everyone to get behind this agenda item, voicing your support directly to the state legislative affairs committee and the executive committee as all such potential agenda issues are being weighed this summer.  

Inclusion of TDIU veterans affects about 2,000 Colorado vet homeowners and survivors, at a cost to Colorado at about $2.6M. Voters originally approved the Disabled Veteran Property Tax Exemption as Referendum E in 2006. The Blue Book described the benefit for "totally disabled veterans unable to work" due to line-of-duty injuries and illnesses. Somehow, "unemployability" was written into the enabling legislation and statue after the amendment was approved. That's not what the voters thought we were approving.

I hope the legislature to include these ignored 100% disabled veterans by exercising its authority to redefine "qualified veteran." A revised statute can include TDIU vets. 

Colorado utilizes VA definitions for management of veterans benefits, so it is very telling to see VA's own rules from VAM21-1 on TDIU. Read carefully, and compare to the language of Referendum E, the enabling statute and the Disabled Veteran Property Tax Exemption form and instructions.

As for Gold Star Wives, the Legislative Support Staff calculated the cost to Colorado would be only $93,000, so it is very, very hard to understand why every Democrat voted against these 140 Gold Star Wives' much too small a benefit.

United Veterans Coalition Considering Agenda Item: Property Tax Exemption for Gold Star Wives

 The United Veterans Coalition state legislative affairs committee is considering addition of the Gold Star Wives Disabled Veteran Survivor Property Tax Exemption for inclusion in the 2022 legislative agenda.

The decision will be based on input from the Gold Star Wives and other primary organization members. I encourage everyone having an opinion on the issue to voice it through their primary group representatives.

The issue was unanimously approved by the Colorado House in the session just ended but killed by the Senate Military and Veterans Affairs Committee. The idea was to submit a referendum to the voters next term, amending the constitution's Article X Section 3.5 to include these active-duty troops' survivors. I believe the change could have been made via statute, a much easier path than changing the consitution.

The Legislative Support Staff calculated the cost to Colorado would be only $93,000, so it is very, very hard to understand why every Democrat voted against these 140 Gold Star Wives' small benefit.

COLORADO SENATE SNUBBED FAMILIES – KILLED GOLD STAR WIVES' PROPERTY TAX EXEMPTION

June 7 2021: Colorado Senate killed Gold Star Wives bill for
given survivors of totally disabled veterans (HCR21-1002

Last week the Colorado Senate really disappointed me. It killed a bill to include Gold Star Wives (widows of troops who die in the line of duty) the same small property tax exemption given widows of totally disabled veterans.

Did senators think our widows don't need the exemption to keep their homes and survive on the puny $1350 per month VA death benefit?

Thousands of survivors of Colorado's disabled vets already get this exemption as they should – but the Senate refused it to our 140 Gold Star Wives. These survivors are denied the exemption only because their servicemembers died in the line of duty on active duty rather than as disabled veterans after active duty.

Esteemed Senators: did you give this any thought before you killed HCR21-1002, passed unanimously by the House?

 

Colorado Senators - You KILLED Veteran's Survivor Property Tax Exemption for my Widow? WHAT WERE YOU THINKING?

         What Were You Thinking?
NOT ABOUT ME, MY WIFE OR MY KIDS!
THAT'S FOR CERTAIN!

 

Colorado Voters Have a Long Memory - especially about how veterans and their survivors are treated

I believe Colorado's Democrat legislators have initiated the more important advances in veterans' benefits, but it would be wrong to conclude that either party is truly disinterested or uncaring. Democrats controlled the House and Senate in 2006 under a Republican governor and are together credited with getting Referendum E in front of the voters. There, the constitutional amendment found overwhelming support. This established the Disabled Veterans Property Tax Exemption in 2007 and reflected well on both parties.

Yet Democrats were particularly uncaring on June 7, 2021 when the Colorado Senate Veterans and Military Affairs Committee voted down HCR21-1002 (by pure party line vote). The bill had been approved unanimously by the House to correct an awkward problem in our Disabled Veteran Survivor Property Tax Exemption. 

This small property tax exemption was initially offered to totally disabled veterans and saved them about $640 a year. The Legislature updated the exemption with HB14-1373 in 2014 to provide for veterans' survivors who were already in receipt of the exemption. Repeat: the exemption was for survivors of a vet already receiving the exemption.

Sadly, that language overlooked the real-world tragedy that not all troops survive to come home to be veterans. Colorado's current tax statute denies the exemption to every widow of every servicemember lost in the line of duty while on active service.

Get the distinction? Get disabled but survive to come home and the exemption is there for your survivor. Sacrifice far more and die in the line of duty and your survivor gets denied the exemption. Widows from World War II, Korea, Vietnam and recent conflicts are refused this exemption because their spouses died on duty, rather than surviving to come home and "be in receipt." 

HCR21-1002 was going to fix that unfortunate wording of the statute so our 140 Colorado Gold Star Widows could qualify for the same small partial property tax exemption. But the opportunity to do the right thing on June 7 was shot down when every Democrat on the state senate's veterans and military affairs committee voted against the bill. There were some heartless phrases thrown around that "we'll have to look at this important issue during next session" and "let's get focused on this next year for something by 2024."

These Democrats might not have known than 80% of these widows are over 60 and 40% are over 65. They've done without the exemption due veterans' widows since losing their husbands in World War II, Korea, Vietnam and more recent conflicts. The state senate turned its back on these survivors.

The Senate made a mistake. Voters took note.