Editor’s Note: This commodity was originally appear on Veterans Law Blog, the better and longest active blog on veterans benefits, accounting by VA-accredited advocate Chris Attig.
The phrases “100% disabled” or “total VA affliction ratings” get befuddled about a lot in veterans affliction allowances claims.Problem is, that byword doesn’t consistently beggarly the aforementioned affair to everyone. In fact, it can beggarly several altered things in at atomic bristles altered types of service-connection claims.
Let’s see if we can bright some of the abashing up.
There are abounding paths to a 100% rating.
The abstraction of a absolute VA affliction appraisement starts from the aforementioned point:
Total (100%) affliction ratings are assigned “when there is present any crime of apperception or anatomy which is acceptable to cede it absurd for the boilerplate actuality to chase a about advantageous occupation,” according to the Department of Veterans Affairs’ cipher of federal regulations. See, for example, 38 C.F.R. § 3.340(a) (2013).
Related: 3 things you charge to attach your affliction claim.
There are bristles means to get there:
Total affliction based on 100% schedular rating. Back the veteran’s service-connected action meets the 100% crime appraisement requirements begin in Table 4 of 38 CFR, they accept a 100% schedular rating.
Total affliction based on schedular Absolute Disability/Individual Unemployability, or TDUI. Back a adept has one service-connected action at 60%, or a absolute appraisement of 70% with one actuality at atomic 40%, the adept can appeal a 100% schedular TDIU rating.
Total affliction based on added schedular TDIU. Back a adept is service-connected for one or added conditions, but is not able to defended abundant advantageous employment, he/she can seek an extra-schedular TDIU appraisement of 100% alike if their ratings don’t adeptness the schedular TDIU requirements above.
Total affliction based on an extra-schedular rating. If the VA agenda of ratings does not abundantly atone a veteran’s service-connected disability, they can seek a 100% extra-schedular rating. This is not the aforementioned as extra-schedular TDIU.
Temporary absolute affliction based on hospitalization. Generally speaking, this is awarded back a adept is ailing for a service-connected action and for the six months afterward that hospitalization.
A affirmation for access is additionally a affirmation for TDIU back there is affirmation of unemployability.
In the Rice v. Shinseki case, the federal ambit captivated that a veteran’s appeal for a college affliction rating, accompanying with affirmation advertence that the veteran’s adeptness to assignment was “significantly impaired” by his or her service-connected altitude analytic raises the affair of alms to TDIU as an another base for added compensation.
This blazon of affirmation is an accepted affirmation and should be advised by the VA bounded appointment whether the adept accurately asks for it or not.
What does that beggarly in applied terms? Depends on area you are in your case.
When filing a affirmation for increase, if you are unemployable because of the service-connected condition, behindhand of the percentage, accommodate VA Anatomy 21-8940 and specify that you are gluttonous TDIU in accession to the affirmation for access for that condition. Accommodate all service-connected altitude that appulse your adeptness to get employment.
When arguing that the VA abominably denied a claim, attending in your claims book for references you fabricated to actuality unemployable or clumsy to get application because of a service-related condition, and again you could altercate that the TDIU affirmation is analytic aloft by the record.
Extra schedular TDIU is not an extra-schedular rating.
Adding added abashing to the mix, there are two absolutely altered types of “extra-schedular” ratings.
The aboriginal is a 38 CFR 3.321(b) extra-schedular rating.
This blazon of extra-schedular appraisement has NOTHING to do with your employability; it is accessible “in aberrant cases area the [normal agenda of ratings] is inadequate.”
To actuate whether a 3.321(b) extra-schedular appraisement is warranted, the VA charge actuate that your schedular appraisement does not reflect your absolute akin of disability. Specifically, you accept an “exceptional affliction picture” that the accustomed VA ratings do not contemplate.
The additional blazon of extra-schedular appraisement is extra-schedular TDIU, and it has aggregate to do with your unemployability.
Extra-schedular TDIU is absolute by 38 CFR 4.16(b) and is absolutely abstracted from the application of an extra-schedular appraisement beneath 3.321(b).
A key difference, but not the alone difference, is that extra-schedular TDIU requires affirmation that you are unemployable.
The VA will abjure your affirmation for TDIU, administratively, if you don’t book the 21-8940.
I see this appear so much. Adept claims unemployability or TDIU, and the VA absolutely catches the accepted claim. They accelerate a letter saying, essentially, accelerate us a archetype of VA Anatomy 21-8940. The vet never sends it in.
The VA has an centralized action of an authoritative abnegation of a appeal for TDIU if the adept fails to accelerate in VA Anatomy 21-8940. And they usually don’t accord a additional warning.
If your appeal for TDIU was administratively denied, what can you do?
Send in the VA Anatomy 21-8940 aural a year of the VA’s antecedent appeal for the form, and your affirmation should get candy appropriately (knowing abounding able-bodied that the VA rarely does what it should).
The VA will not accord you an assay for a TDIU affirmation unless you accurately analyze the medical action that led to the unemployability.
Hell, they may not alike accord you the assay anyway.
But the important point to agenda actuality is that you should account on VA Anatomy 21-8940 every distinct medical action that is, or that you accept should be, service-connected that you accept plays a role in apprehension you unemployable.
The VA may not accord you a advantage assay on anniversary of those conditions, but at atomic you’ve laid the background for arguing after that the VA bootless to accomplish its assignment to abetment if your affirmation is denied.
And, by the way, in about bisected of the cases area the VA says that the adept never submitted a VA Anatomy 21-8940, I’ve begin that they accept already submitted at atomic one archetype of the form.
How do you acquisition out if you submitted one and the VA is aloof not seeing it?
Get a archetype of your claims file; it’s the best important certificate in your VA claim.
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