Posted on Jun 27, 2016
5 Things You Didn’t Know About 100% Disability Ratings
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A 100% disability rating can mean different things in at least five different types of service-connection claims.
Editor’s Note: This article was originally published on Veterans Law Blog, the largest and longest running blog on veterans benefits, written by VA-accredited attorney Chris Attig.
The phrases “100% disabled” or “total VA disability ratings” get thrown around a lot in veterans disability benefits claims.
Problem is, that phrase doesn’t always mean the same thing to everyone. In fact, it can mean several different things in at least five different types of service-connection claims.
Let’s see if we can clear some of the confusion up.
There are many paths to a 100% rating.
The idea of a total VA disability rating starts from the same point:
Total (100%) disability ratings are assigned “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation,” according to the Department of Veterans Affairs’ code of federal regulations. See, for example, 38 C.F.R. § 3.340(a) (2013).
Related: 3 things you need to nail your disability claim.
There are five ways to get there:
Total disability based on 100% schedular rating. When the veteran’s service-connected condition meets the 100% impairment rating requirements found in Table 4 of 38 CFR, they receive a 100% schedular rating.
Total disability based on schedular Total Disability/Individual Unemployability, or TDUI. When a veteran has one service-connected condition at 60%, or a total rating of 70% with one being at least 40%, the veteran can request a 100% schedular TDIU rating.
Total disability based on extra schedular TDIU. When a veteran is service-connected for one or more conditions, but is not able to secure substantial gainful employment, he/she can seek an extra-schedular TDIU rating of 100% even if their ratings don’t reach the schedular TDIU requirements above.
Total disability based on an extra-schedular rating. If the VA schedule of ratings does not adequately compensate a veteran’s service-connected disability, they can seek a 100% extra-schedular rating. This is not the same as extra-schedular TDIU.
Temporary total disability based on hospitalization. Generally speaking, this is awarded when a veteran is hospitalized for a service-connected condition and for the six months following that hospitalization.
A claim for increase is also a claim for TDIU when there is evidence of unemployability.
In the Rice v. Shinseki case, the federal circuit held that a veteran’s request for a higher disability rating, coupled with evidence indicating that the veteran’s ability to work was “significantly impaired” by his or her service-connected conditions reasonably raises the issue of entitlement to TDIU as an alternative basis for increased compensation.
This type of claim is an inferred claim and should be considered by the VA regional office whether the veteran specifically asks for it or not.
What does that mean in practical terms? Depends on where you are in your case.
When filing a claim for increase, if you are unemployable because of the service-connected condition, regardless of the percentage, include VA Form 21-8940 and specify that you are seeking TDIU in addition to the claim for increase for that condition. Include all service-connected conditions that impact your ability to get employment.
When arguing that the VA wrongly denied a claim, look in your claims file for references you made to being unemployable or unable to get employment because of a service-related condition, and then you could argue that the TDIU claim is reasonably raised by the record.
Extra schedular TDIU is not an extra-schedular rating.
Adding more confusion to the mix, there are two totally different types of “extra-schedular” ratings.
The first is a 38 CFR 3.321(b) extra-schedular rating.
This type of extra-schedular rating has NOTHING to do with your employability; it is available “in exceptional cases where the [normal schedule of ratings] is inadequate.”
To determine whether a 3.321(b) extra-schedular rating is warranted, the VA must determine that your schedular rating does not reflect your actual level of disability. Specifically, you have an “exceptional disability picture” that the normal VA ratings do not contemplate.
The second type of extra-schedular rating is extra-schedular TDIU, and it has everything to do with your unemployability.
Extra-schedular TDIU is governed by 38 CFR 4.16(b) and is totally separate from the consideration of an extra-schedular rating under 3.321(b).
A key difference, but not the only difference, is that extra-schedular TDIU requires evidence that you are unemployable.
The VA will deny your claim for TDIU, administratively, if you don’t file the 21-8940.
I see this happen so much. Veteran claims unemployability or TDIU, and the VA actually catches the inferred claim. They send a letter saying, essentially, send us a copy of VA Form 21-8940. The vet never sends it in.
The VA has an internal policy of an administrative denial of a request for TDIU if the veteran fails to send in VA Form 21-8940. And they usually don’t give a second warning.
If your request for TDIU was administratively denied, what can you do?
Send in the VA Form 21-8940 within a year of the VA’s initial request for the form, and your claim should get processed properly (knowing full well that the VA rarely does what it should).
The VA will not give you an exam for a TDIU claim unless you specifically identify the medical condition that led to the unemployability.
Hell, they may not even give you the exam anyway.
But the important point to note here is that you should list on VA Form 21-8940 every single medical condition that is, or that you believe should be, service-connected that you believe plays a role in rendering you unemployable.
The VA may not give you a compensation exam on each of those conditions, but at least you’ve laid the groundwork for arguing later that the VA failed to fulfill its duty to assist if your claim is denied.
And, by the way, in about half of the cases where the VA says that the veteran never submitted a VA Form 21-8940, I’ve found that they have already submitted at least one copy of the form.
How do you find out if you submitted one and the VA is just not seeing it?
Get a copy of your claims file; it’s the most important document in your VA claim.
More from the Veterans Law Blog:
•The VA C-File is the most important document in your VA appeal
•The BVA Does have a Duty to Assist Veterans at the BVA Hearing
•The Easiest Way to Get Your VA TDIU Claim denied
Editor’s Note: This article was originally published on Veterans Law Blog, the largest and longest running blog on veterans benefits, written by VA-accredited attorney Chris Attig.
The phrases “100% disabled” or “total VA disability ratings” get thrown around a lot in veterans disability benefits claims.
Problem is, that phrase doesn’t always mean the same thing to everyone. In fact, it can mean several different things in at least five different types of service-connection claims.
Let’s see if we can clear some of the confusion up.
There are many paths to a 100% rating.
The idea of a total VA disability rating starts from the same point:
Total (100%) disability ratings are assigned “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation,” according to the Department of Veterans Affairs’ code of federal regulations. See, for example, 38 C.F.R. § 3.340(a) (2013).
Related: 3 things you need to nail your disability claim.
There are five ways to get there:
Total disability based on 100% schedular rating. When the veteran’s service-connected condition meets the 100% impairment rating requirements found in Table 4 of 38 CFR, they receive a 100% schedular rating.
Total disability based on schedular Total Disability/Individual Unemployability, or TDUI. When a veteran has one service-connected condition at 60%, or a total rating of 70% with one being at least 40%, the veteran can request a 100% schedular TDIU rating.
Total disability based on extra schedular TDIU. When a veteran is service-connected for one or more conditions, but is not able to secure substantial gainful employment, he/she can seek an extra-schedular TDIU rating of 100% even if their ratings don’t reach the schedular TDIU requirements above.
Total disability based on an extra-schedular rating. If the VA schedule of ratings does not adequately compensate a veteran’s service-connected disability, they can seek a 100% extra-schedular rating. This is not the same as extra-schedular TDIU.
Temporary total disability based on hospitalization. Generally speaking, this is awarded when a veteran is hospitalized for a service-connected condition and for the six months following that hospitalization.
A claim for increase is also a claim for TDIU when there is evidence of unemployability.
In the Rice v. Shinseki case, the federal circuit held that a veteran’s request for a higher disability rating, coupled with evidence indicating that the veteran’s ability to work was “significantly impaired” by his or her service-connected conditions reasonably raises the issue of entitlement to TDIU as an alternative basis for increased compensation.
This type of claim is an inferred claim and should be considered by the VA regional office whether the veteran specifically asks for it or not.
What does that mean in practical terms? Depends on where you are in your case.
When filing a claim for increase, if you are unemployable because of the service-connected condition, regardless of the percentage, include VA Form 21-8940 and specify that you are seeking TDIU in addition to the claim for increase for that condition. Include all service-connected conditions that impact your ability to get employment.
When arguing that the VA wrongly denied a claim, look in your claims file for references you made to being unemployable or unable to get employment because of a service-related condition, and then you could argue that the TDIU claim is reasonably raised by the record.
Extra schedular TDIU is not an extra-schedular rating.
Adding more confusion to the mix, there are two totally different types of “extra-schedular” ratings.
The first is a 38 CFR 3.321(b) extra-schedular rating.
This type of extra-schedular rating has NOTHING to do with your employability; it is available “in exceptional cases where the [normal schedule of ratings] is inadequate.”
To determine whether a 3.321(b) extra-schedular rating is warranted, the VA must determine that your schedular rating does not reflect your actual level of disability. Specifically, you have an “exceptional disability picture” that the normal VA ratings do not contemplate.
The second type of extra-schedular rating is extra-schedular TDIU, and it has everything to do with your unemployability.
Extra-schedular TDIU is governed by 38 CFR 4.16(b) and is totally separate from the consideration of an extra-schedular rating under 3.321(b).
A key difference, but not the only difference, is that extra-schedular TDIU requires evidence that you are unemployable.
The VA will deny your claim for TDIU, administratively, if you don’t file the 21-8940.
I see this happen so much. Veteran claims unemployability or TDIU, and the VA actually catches the inferred claim. They send a letter saying, essentially, send us a copy of VA Form 21-8940. The vet never sends it in.
The VA has an internal policy of an administrative denial of a request for TDIU if the veteran fails to send in VA Form 21-8940. And they usually don’t give a second warning.
If your request for TDIU was administratively denied, what can you do?
Send in the VA Form 21-8940 within a year of the VA’s initial request for the form, and your claim should get processed properly (knowing full well that the VA rarely does what it should).
The VA will not give you an exam for a TDIU claim unless you specifically identify the medical condition that led to the unemployability.
Hell, they may not even give you the exam anyway.
But the important point to note here is that you should list on VA Form 21-8940 every single medical condition that is, or that you believe should be, service-connected that you believe plays a role in rendering you unemployable.
The VA may not give you a compensation exam on each of those conditions, but at least you’ve laid the groundwork for arguing later that the VA failed to fulfill its duty to assist if your claim is denied.
And, by the way, in about half of the cases where the VA says that the veteran never submitted a VA Form 21-8940, I’ve found that they have already submitted at least one copy of the form.
How do you find out if you submitted one and the VA is just not seeing it?
Get a copy of your claims file; it’s the most important document in your VA claim.
More from the Veterans Law Blog:
•The VA C-File is the most important document in your VA appeal
•The BVA Does have a Duty to Assist Veterans at the BVA Hearing
•The Easiest Way to Get Your VA TDIU Claim denied
5 Things You Didn’t Know About 100% Disability Ratings
Posted from taskandpurpose.comPosted in these groups: 
Disabled Veterans
Department of Veterans Affairs (VA)
Disabled Veterans Department of Veterans Affairs (VA)
Edited >1 y ago
Posted >1 y ago
Responses: 10
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When it comes to math, the VA has bastardized everything the ancient Egyptians have learned about math.
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SPC Keith Magnussen
Simplest description of VA math...... CPL, Your highest rating is a true #, so in your case 40% = 40% - leaving 60% of your body functional. The second highest is 30% of the functional (60%) part which is worth 18 points, bringing your total to 58%, leaving 42% functional - the 10% is worth 4 points which brings your total to 62% which is rounded to the nearest 10 being 60%. There is also a bi-lateral factor that can be added in depending on what the specific leg ratings are, if they mirror each other, but this is not worth much anyway and wouldn't make any real difference.
The higher your overall rating is the less each additional individual rating is worth!
The higher your overall rating is the less each additional individual rating is worth!
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MAJ (Join to see)
SPC Keith Magnussen Thus you can be 90% and need 5 additional 10% ratings to get above 95% in order to be rated 100%. Individual ratings can total over 300% in order to be 100% total and permanent.
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That is interesting SFC Joe S. Davis Jr., MSM, DSL
"Total disability based on schedular Total Disability/Individual Unemployability, or TDUI. When a veteran has one service-connected condition at 60%, or a total rating of 70% with one being at least 40%, the veteran can request a 100% schedular TDIU rating."
I was initially rated at 60% disabled for my heart function and other disabilities which initially bumped my rating up to 70% in July 2008. Later my total rating was increased to 80%.
Since October of last year I have been seen by the evaluation side of the VA several times for decreased heart function primarily and orthopedic issues as well. The patient advocate at Martinsburg, WV VAMC submitted me for TDUI last summer. I am still waiting.
"Total disability based on schedular Total Disability/Individual Unemployability, or TDUI. When a veteran has one service-connected condition at 60%, or a total rating of 70% with one being at least 40%, the veteran can request a 100% schedular TDIU rating."
I was initially rated at 60% disabled for my heart function and other disabilities which initially bumped my rating up to 70% in July 2008. Later my total rating was increased to 80%.
Since October of last year I have been seen by the evaluation side of the VA several times for decreased heart function primarily and orthopedic issues as well. The patient advocate at Martinsburg, WV VAMC submitted me for TDUI last summer. I am still waiting.
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SGM David W. Carr LOM, DMSM MP SGT
LTC Stephen F. Sir you need to check the VA ratings for heart function and SS disability. Because two my friend one was a veteran both receive SS disability based on their poor function numbers.
When I retired my initial VA rating in October 2003 was 80% service connected. I then applied for 100% unemployability and was awarded back to my original date. After numerous surgeries and medical issues. I became a rating of 100% plus because of other medical conditions that have a special added compensation amount.
I was denied SS disability twice because the supposed experts felt with an 80s Computer Science degree and MP experience I could run survaliance monitors or computer related work. He looked at me the second time while recovering from cancer surgery like I was crazy. When I told him he was totally clueless on the job description and responsibilities of a First/Master Sergeant and a Sergeant Major and how much COBAL, FORTRAN and JCL was being used in the workforce.
An by the way the Computer Programming MOS no longer exists in the Army inventory.
When I retired my initial VA rating in October 2003 was 80% service connected. I then applied for 100% unemployability and was awarded back to my original date. After numerous surgeries and medical issues. I became a rating of 100% plus because of other medical conditions that have a special added compensation amount.
I was denied SS disability twice because the supposed experts felt with an 80s Computer Science degree and MP experience I could run survaliance monitors or computer related work. He looked at me the second time while recovering from cancer surgery like I was crazy. When I told him he was totally clueless on the job description and responsibilities of a First/Master Sergeant and a Sergeant Major and how much COBAL, FORTRAN and JCL was being used in the workforce.
An by the way the Computer Programming MOS no longer exists in the Army inventory.
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LTC Stephen F.
SGM David W. Carr LOM, DMSM MP SGT - The Patient Advocate looked at my medical and VA disability information and submitted a Individual Unemployability packet for me and encouraged me to apply to Social Security disability. Social Security disability did as little as they could before they denied my claim claiming they couldn't get substantiating claims from my surgeons and medical VA doctors or my previous employer - who they never contacted.
The VBA doctors noticed my heart function had declined with significant evidence and I am hopeful that my VA IU will be verified and hopeful my disability rating will be increased soon. It has been about 9 months. It would be nice to have the Individual Unemployability backdated to 2012 when I was terminated from my civilian employment.
SFC Joe S. Davis Jr., MSM, DSL
The VBA doctors noticed my heart function had declined with significant evidence and I am hopeful that my VA IU will be verified and hopeful my disability rating will be increased soon. It has been about 9 months. It would be nice to have the Individual Unemployability backdated to 2012 when I was terminated from my civilian employment.
SFC Joe S. Davis Jr., MSM, DSL
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SFC Joe S. Davis Jr., MSM, DSL I think anytime you submit any paperwork for the VA that you insure there is a tracking in place. I always use the Texas Veterans located at my VA hospital to process my reply with attached documentation which they can track.
Their are numerous other military organizations like the DAV and VFW that do the same.
Their are numerous other military organizations like the DAV and VFW that do the same.
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