good afternoon and welcome to C CK's
Facebook live my name is Jenna Zellmer
I'm an attorney here at C CK and joining
me today are Rachel Foster and Nick
Briggs who both work on Veterans
Benefits appeals at the agency today
we're gonna be talking about 100 percent
VA disability ratings and when and when
when a veteran should and should not
work um as always please feel free to
leave your comments in the question box
below we will do our best to try to
answer them and you can also find more
information on our website at C CK
law.com so let's get into it so 100
percent disability ratings I think the
most frequent question that we get from
veterans is that they already have
social security disability or they've
previously been rejected for Social
Security disability and there's a
question about how those two interact
and whether or not a veteran can get
both at the same time or whether one
precludes you from getting the other so
next you want to talk a little bit about
the distinction between Social Security
and VA disability benefits absolutely so
Social Security disability benefits are
based on sort of a boom-or-bust
assessment of whether or not you're
unable to work due to your conditions
but in the case of VA compensation if a
veteran is service-connected for
numerous conditions v is going to
determine the ratings that need to be
assigned for those conditions combine
them and then whatever that rating ends
up being is going to determine how much
money you're paid so there are certainly
going to be situations where a veteran
might be receiving a certain reading and
they'd still be able to work in that
situation and receive compensation for
what their service connected for great
and Nick mentioned combined ratings so
Rachel do you want to give a little bit
of background just on how VA rates
disabilities and what it means when they
combine ratings because it's not as
simple as a lot of people think it
should be unfortunately not
so being assigns evaluations based on
the diagnostic criteria for the
disability of a vital surgery
service-connected for and the severity
and
the types of criteria that they have to
meet in order to get that disability
evaluation so a veteran can have a
single disability at 100% or they can
have multiple disabilities that combine
using VA specific math and their rating
table to get a 100% disability
evaluation and so that's what we would
call a scheduler 100 essentially right
so a veteran could have one single
service-connected disability who and
which based on the schedule gets them a
100 percent rating or they could have
multiple disabilities that combined up
to 100% and veterans who have this
scheduler 100 disability can they still
work Nick yes absolutely at the end of
the day there are gonna be certain
conditions like Rachel mentioned that
are considered to be totally disabling
in and of themselves and oftentimes they
may have some aspects of the rating
criteria that considers work but
oftentimes they're going to be
conditions like an active cancer that
are just considered totally disabling
regardless of whether or not the
veterans working and then if a veteran
has numerous conditions that combine to
100% the same basic logic applies it's
ultimately based off of how the ratings
combined independent of whether or not
the veterans working yeah so so I think
the takeaway here is that if you have a
100 percent rating that's based on the
Radian schedule that doesn't necessarily
preclude you from working and you can
also at the same time be receiving maybe
Social Security disability benefits but
that might you know you should probably
be working in that in that situation but
you could get Social Security benefits
and also have a scheduler 100 percent
rating so speaking of scheduler
wonder-percent radians there is another
aspect of 100 percent radiance called
permanent in total so Rachel do you want
to explain a little bit about what a
permanent total rating is and how it
differs from a normal scheduler 100%
sure so if a veteran is rated not only
100 percent but also permanently
disabled that essentially indicates that
VA doesn't expect that condition to
improve so they the veteran wouldn't be
expected to attend a traditional review
examinations that disability evaluation
is protected and I think what's
important to know is that just because
you have a scheduler 100 or even
entitlement to TDR you which we'll get
to later that doesn't necessarily mean
that VI considers you prominent in total
that's a special designation that's on
either your own rating code sheet
sometimes you can find it if you've been
deemed eligible for dependency
educational benefits and so there's a
whole different way there's a whole
bunch of different ways to figure out if
you've been deemed permanent in total
but it's not the same as just getting a
scheduler 100% radiant and I think that
we have facebook lives previously about
this and you can definitely find more
information on our website so Nick can
veterans who have permanent in total or
what we call PMT benefits could they
still work in theory yes ultimately
certain conditions might be considered
permanent regardless of whether or not
the veterans working but again the idea
of a total disability rating presumes
that the conditions actually totally
incapacitating so those are factors that
VA might consider and whether or not a
veteran's conditions are considered to
be permanent in the first place
so there's no blanket prohibition that
you can't work if you're permanent in
total but at the same time the
employment status might be a factor that
VA considers when making that
determination
yeah I think that's a really good point
because even you know despite all of
this that we're going to talk about
today
um even though there are technically
situations where a veteran can still be
working and getting 100% rating there is
always that risk that VA is gonna
consider that factor and either proposed
severance or proposed a rating reduction
based on what they consider evidence
that your disability isn't necessarily s
of the year as it once was so that's
definitely something to be aware of
so we talked about permanent in total
the flip side of that is temporary total
irradiance so Rachel can you talk to us
about a little bit about what those mean
sure so temporary total evaluations are
established with an understanding that
it's a temporary situation
so circumstances that we see that with
is hospitalization lasting more than 21
days or any kind of surgery or treatment
requiring recovery or convalescence for
months at a time
um and Nick can veterans with temporary
total the ratings still work
again there's no blanket prohibition
here necessarily but again these are
conditions that are considered to be
temporary so no there's necessarily
going to be situations where if the
treatments discontinued then the
conditions no longer considered to be
totally to save one so it's a factor to
be weighed if a doctor determines that
you're able to return to work then that
might be a situation where VA would then
discontinue the rating under the
regulations right and I think yeah this
is a little bit theoretical because in
in practice if you're hospitalized
you're not gonna be going to work every
day but you still might be employed with
your employer you might just be taking a
leave and so I think that's where you
know you can still say you are
technically working you're employed
receiving 100% rating but that 100%
rating is meant to you know compensate
for the fact that you were maybe in the
hospital for 21 plus days based on your
service-connected disability and so
that's kind of how the interplay between
work and hundred percent ratings for
temporary totals work so those are all
we've all kind of talked about scheduler
100% ratings and and all the weight
different ways that you can get to 100%
rating without the big the big one tdiu
oh so let's kind of go into tdiu and I
know we have a lot of information on our
website about tdiu we've done a lot of
facebook lives about tdiu blogs and so
I'm sure all of our viewers are aware of
what it is but we can just give a brief
overview about what tdiu is and how
veterans qualify for it so Rachel do you
want to take us away sure
so TDI you just stands for total
disability rating based on individual
unemployability VA has looks at it under
section a and Section B which really
just refers to whether the veteran meets
the scheduler criteria so if the veteran
has a single disability evaluated as 60%
disabling they meet the scheduler
criteria for TDI you also if the veteran
has multiple disabilities they combine
to at least a 70% and one of those
disabilities is authority that also
meets a scheduler criteria but even if
they don't like those scheduler
requirements they can still meet the
criteria for TDI you under Section B
that just requires referral to the
director of compensation so yeah so
there there is a kind of a threshold
level of ratings that you should you
need to meet in order to maybe get a
little bit more of lenient mm
adjudication about TDI you but I think a
lot of times veterans who have lower
ratings maybe some things that they
shouldn't even apply for TDI you but
like you said Rachel you know even
though you have a lower rating maybe you
have a 30% rating for something maybe
you have a 40% rating but it doesn't you
know it doesn't get to that higher level
under a you still if you still think
that your service disability is prevent
you from working um you should
definitely still apply for TDI you and
you should talk to your either a div rep
other VSO or attorney whoever is helping
you with your claim because it's
definitely a complicated area um and
we've kind of talked about working so VA
doesn't doesn't use the word work
necessarily it uses the word whether or
not a veteran is engaged in substantial
gainful employment so do you want talk a
little bit about that sure so the the
term substantial gainful employment is
basically defined as a job that earns
more than the US Census Bureau's poverty
threshold which is a little over $13,000
now so basically if a veteran is working
but making less than that amount each
year and they're limited to that work
due to their service-connected
conditions their employment would be
considered marginal okay not
substantially gainful
so they'd still be entitled to TDI you
in that situation yeah and we've had um
you know we've we've had some litigation
about this about what substantial
gainful employment actually entails
because VA really defines it just
basically based on what it's not and so
they said you know substantial gainful
employment is not marginal employment
and so I think going back to the theme
of today's Facebook love can a veteran
still work well there you know where
they're having TDI you technically yes
if it's marginal I think another way
that a veteran can work well you know
benefiting from TDI you is if they are
working in a protected work environment
and we have some case law on that as
well which I'm sure we have linked to on
our website let's you want to talk a
little bit about what a protected work
environment means sure so it really
refers to anything that's like a family
business or a sheltered workshop where a
veteran is working they may be earning
income above the poverty level
thresholds but the work that they're
doing in comparison to other employees
that are making the doing the same kind
of functions and role responsibilities
they're receiving accommodations
significant accommodations from their
employer or from their selves that
they're self employed that actually
allow them to continue that work
otherwise if they didn't have those
accommodations they wouldn't be able to
sustain that same kind of employment
accommodations could be anything as far
as they don't have to do the same kind
of work and responsibilities that other
employees have to do they may as a
result of a disability have to miss work
more often they may have more behavioral
or have more difficulty interacting with
co-workers but otherwise they're not
getting reprimanded for the eye or
facing termination accommodations like
that and Nick how has VA actually
defined to predict a work environment
part of the problem is that they haven't
it's determined on what they consider to
be a facts found basis mean
either the regional office or the board
will look at the facts look at the
accommodations provided and then make a
determination based off of that evidence
whether or not they consider that
particular work situation to be
protected so oftentimes that can make it
difficult for a veteran to know what
evidence they should submit because
without a standard to compare their
situation against it's really all kind
of up in the air right so like all of
the accommodations that Rachel just
mentioned you know those are all really
good examples of the ways that you know
a veteran might want to demonstrate that
their work is protected work environment
but because VA hasn't necessarily
defined the term it's not guaranteed
that those types of things are actually
going to lead to an award of tdiu and as
I mentioned before sue CK has done a lot
of work in this area um you know it
started with that case called Cantrell
which was specifically about you know
what a protected work environment was
and then after that we had a couple
other cases called withers and Ray which
is really the court essentially is
really trying to get VA to define its
terms and provide more guidance for
veterans so that they know what they
need to demonstrate in order to them to
get tdiu and going back to what Rachel
said about accommodations I think it's
important to note that you know the
American with Disabilities Act does
require employers to provide reasonable
accommodations for them for their
employees um you know it's legal to you
know discriminate on the fact of an
employee is disabled but I think the
difference here is if those
accommodations become unreasonable to
the point where a veteran you know the
only reason a veteran is still employed
it's kind of because the employer is
going out of their way to provide this
very protected work environment and that
would allow a veteran to work in and if
they didn't have that productive work
environment they wouldn't be able to
work in any other area that's kind of
where we see the line
another important consideration is the
idea that the accommodations are meant
to allow the veteran to perform the
essential functions of their job so if
at the end of the day regardless of any
accommodation provided they can't meet
those expectations then it should be
considered a protected work environment
so when a veteran is putting together
evidence in support of their case one of
the things that they can look to you is
have Social Security or the Department
of Labor defines the critical functions
of their job so that they can
demonstrate hey I can't do this I can't
do that regardless of what they do to
help me perform those functions so okay
and finally Rachel can we just MIT
remind our viewers kind of how a veteran
can apply for TBI you sure so that can
be done by completing and submitting a
VA form 8949 creased compensation based
on other playability great and I think
you know if you're filing a new claim
obviously you want to be aware of all
the new VA regulations surrounding
Appeals reform which we have a lot of
information on our website if you're if
you previously filed a claim you know in
the past you might need to file a
supplemental claim now so there's a
whole lot of kind of still moving parts
and more still kind of figuring out how
VA Appeals Modernization Act is going to
work so I really encourage you to speak
with a veteran service organization an
attorney an otherwise accredited agent
that they can kind of walk you through
this process and just to correct myself
I did call it a claim but VA has and the
court has said that you know entitlement
to tdiu is not a claim it can be tied to
an increased rating claim so if you have
a penny and increased rating claim and
you believe that you are unable to work
that's something that you can raise as
part of that claim so just to wrap it up
does anybody have any closing closing
thoughts I'm just one thing to point out
is that while VA typically requires you
to submit the form at the end of the day
tdiu is one of those issues that they're
supposed to consider if it's been raised
by the record so if you do have an
increased rating claim pending and you
submit evidence showing that you're
unable
to work due to those conditions tdiu is
supposed to be something that the VA
considers on its own okay great so just
to wrap up um you know if you have a 100
percent rating that doesn't necessarily
mean you shouldn't be working but there
are a lot of unpredictable situations in
this area so if you are working and you
have a wonderful person trading I would
just encourage you to make sure that you
are on the up-and-up and make sure that
VA knows about everything and if you
have entitlement to TDI you you
definitely shouldn't be working unless
it's in a productive work environment or
you're making below the poverty level so
thank you again for joining us this
afternoon my name is Jenna here with
Rachel and Nick and we'll see you next
week
you