Consulting the BVA will be an on-going series. I will read BVA opinions and share what I learn.
I like to read through BVA opinions to glean insight into the best ways to overturn VA denial letters. While Board of Veterans Appeals decisions are not binding, they often provide valuable clues for how to craft a successful appeal.
Can a veteran work and still be eligible for Total Disability Individual Unemployability (TDIU)?
Most veterans know that the VA will still award TDIU even if they can work, so long as that employment isn’t considered substantially gainful. What many veterans don’t realize, however, is that TDIU benefits may still be available even if the VA decides that they are able to hold down substantially gainful employment.
The VA reviews nearly every aspect of the veteran’s condition except for age and non-service connected disabilities when making a TDIU decision. During the VA’s review of a claim for TDIU, the veteran’s prior work history, education, and special training are taken into consideration. This is crucial. The VA is not entirely unreasonable.
In one federal case the court states that the veteran needn’t be a “basket case” to receive an award of TDIU. The VA should examine the veteran’s capacity to engage in substantially gainful employment from a practical aspect. Just because a veteran, in theory, could work at some job, from among all the possible jobs in the world, does not mean he or she can participate in substantially gainful employment.
Remember, the VA will, or at least should, pay careful attention to prior work history, education, and special training. The test shouldn’t be whether a veteran can work any job. Rather, the test should be whether a specific veteran can engage in a particular job based on his or her physical and mental capabilities.
DRO’s may deny a TDIU claims because the veteran’s service-connected disabilities do not prevent him or her from employment that requires light or sedentary duties. These decisions are handed out regardless of the veteran’s prior job history or education level. The Regional Office may take a one size fits all approach to employment. The particular situation of the veteran may be ignored in favor of a decision that avoids the complexity and color of the entire claim.
This myopic view may result in a denial letter when the veteran is actually entitled to an award of benefits. Veterans must remember that the VA makes mistakes on a regular basis. A denial letter does not mean you are ineligible for benefits. Veterans must be prepared for a denial letter and they must have a plan in place for appealing.
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