There are two ways of getting paid at the 100 percent disability level by the VA. One way is if your medical examination shows that your medical conditions result in a 100 percent rating according to the VA combined rating schedule. (The VA does not just add up your disability ratings to get to 100 percent. Instead it uses a special combined rating table—a 60 percent rating and a 40 percent rating, though adding up to 100, are only an 80 percent combined rating in the VA table.) Alternatively, you can show that your disabilities keep you from working, in which case you can get paid at the 100 percent disability rate even if your medical conditions do not reach 100 percent under the VA combined rating schedule. This second option is called Total Disability Rating Based on Individual Unemployability (also called TDIU or IU).
TDIU is not necessarily permanent. But it can be difficult for the VA to downgrade your rating once it has been awarded to you–especially if you have an experienced veterans compensation lawyer to help you. Generally, you are most likely to lose TDIU if you are starting to work full time again, or your most recent medical examination showed a significant improvement in your condition. However, even if your benefits are reduced, you may still be able to get your TDIU payments back. At Jackson & MacNichol, we’ve helped veterans just like you get TDIU back after it has been taken away. Call us today at 800-524-3339 for a free consultation about your case.
You Can Lose TDIU If Your Condition Improves or If You Engage in Gainful Employment
According to VA regulations, you usually cannot benefit from a total disability rating based on individual unemployability if you are maintaining “gainful employment.” Gainful employment is defined as any job that puts you over the poverty line and that does not include special accommodations. Any work that puts you under the poverty line is considered marginal employment, and usually will not affect your ability to receive TDIU benefits.
Even if your job does pay enough that you are above the poverty line, it may still be considered marginal employment if you recieve significant special accommodations at work. Such permitted employment in a “sheltered environment” could include working for a family business. But it could also be any job where you are given special treatment because of your disabilities that are not given to other employees, and without which you could not do your job.
The VA must justify the downgrade of your TDIU status. Even if you are working, depending on the type of job you hold, a skilled lawyer can push back against the VA’s assumptions and show that you are engaging only in marginal employment, which is still allowed, even for people who receive TDIU benefits.
Besides engaging in gainful employment, the other common way of losing your TDU status is if your medical conditions show improvement after your periodic VA medical examinations. For example, you can only get TDIU payments if your medical conditions put you at a 60 to 70 percent disability rating or higher under the VA combined rating schedule. If an exam shows that you should now be rated as 50 percent disabled, combined, you could lose your TDIU status.
When the VA wants to lower your rating, it must first notify you. You have sixty days from this notification to submit evidence to show that your benefits should not be reduced. You can also request a pre-determination hearing where you can argue against the reduction. In some cases, the VA will schedule another examination before reaching its final decision, giving you another shot at maintaining your rating. If the VA does lower your rating, you can appeal the VA’s decision to reduce your monthly disability benefits.
Don’t Let the VA Lower Your Disability Rating Without a Fight
The VA process includes steps to protect veterans from having their disability rating downgraded. You should take full advantage of these procedural protections. At Jackson & MacNichol, we are often able to help our clients restore their total disability status after it has been taken away, but we can only do so if they come to us in time. Once the deadline for contesting the reduction of your disability status has passed, there may be little you can do. As a result, it is very important to get the help of a lawyer experienced in veterans disability compensation within a year of any decision reducing your TDIU or other veterans benefits. For this reason, you should call us today at 800-524-3339 if the VA has downgraded your disability rating and payments.
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