It is a common misconception, among both veterans and veterans’ representatives, that senior citizens are not eligible for Total Disability Based On Unemployability, aka T.D.I.U. or “unemployability,” which affords veterans a 100% disability rating based on inability to obtain or maintain gainful employment.
Recently, a senior-citizen veteran approached the office of Attorney Sean Kendall after being denied entitlement to unemployability by a VA Regional Office, and then also the Board of Veterans’ Appeals, on the basis of not being “precluded [by his service-connected disabilities] from securing and following a substantially gainful occupation in a sedentary capacity.” In other words, VA was arguing that the veteran – who is over 80 years old, suffers from hearing loss and tinnitus, has not worked since 1983 and has only a high-school education – is employable because his service-connected bilateral knee disability only “limits his ability to stand and walk [and] perform any job-related duties that require standing and walking” and he “would be able to perform duties that do not require standing and walking.”
Keep in mind that this is a veteran who, prior to VA’s denial of his unemployability, was found unable to walk more than one city block before needing rest. The veteran’s work history had been in farming and construction and as a custodian, not an office worker, and he had retired because of his service-connected knee disability.
VA also stated that the elderly veteran’s hearing loss and tinnitus “would have minimal impact in a work environment” because the associated pain “lasts only a few seconds at a time.” Using that rationale, the Board of Veterans’ Appeals deemed the 80+-year-old veteran able to “obtain and maintain a substantially gainful occupation.”
INDEPENDENT REPORTS TO ARGUE AGAINST VA’S OPINION
Attorney Kendall submitted to VA a vocational assessment from an independent expert that determined that the veteran was unable to work due to his disabilities and that he “does not have any skills that would be transferrable to a sedentary type of occupation.” Attorney Kendall also obtained and submitted to VA, on the veteran’s behalf, a report from a private vocational rehabilitation and evaluation specialist who said that, because of the veteran’s chronic knee and auditory disabilities, not to mention the veteran’s corresponding need for powerful pain medication, he is “unable to secure, follow or maintain a substantially gainful occupation as a result of his service-connected disabilities.”
The Board granted the veteran Total Disability Based On Individual Unemployability last month and he was awarded retroactive benefits in connection with his grant.
REGARDLESS OF AGE, VETERANS SHOULD FILE FOR UNEMPLOYABILITY
Regardless of your age, or whether you are retired, you should apply for T.D.I.U. (unemployability) if your service-connected disability prevents you from working. In the aforementioned case, Attorney Kendall was able to successfully argue to the Board of Veterans’ Appeals that the elderly veteran’s education and occupational experience prevent him from obtaining or maintaining even the sedentary type of work, such as being a librarian, that the VA referenced in its previous denial.
As you can see, it is always a good idea to file for unemployability if you believe your service-connected disabilities are what prevent you from working. VA has to factor in your work history, education, disabilities and medication, and cannot simply base a denial of entitlement to T.D.I.U. on your age or what VA’s own examiners initially opine.
If you believe you are entitled to unemployability, please contact the office of Attorney Sean Kendall today, at 877-629-1712.
