Subscribe
Share
Share
Embed
Welcome to The Veterans Disability Nexus, where we provide unique insights and expertise on medical evidence related to VA-rated disabilities. Leah Bucholz, a US Army Veteran, Physician Assistant, & former Compensation & Pension Examiner shares her knowledge related to Independent Medical Opinions often referred to as “Nexus Letters” in support of your pursuit of VA Disability every Tuesday & Wednesday at 7AM Central.
Take control of your medical evidence related to your benefits and visit https://podcast.prestigeveteranmctx.info/veteran/ for more information and to connect directly with us!
Guys, it's Leah B from Prestige Veteran Medical Consulting. I am a US Army veteran, physician assistant, and former compensation and pension examiner. Today I have Rebecca Deming on from ProVet Legal. She's an accredited VA attorney, amazing human being and veteran advocate, and we've had her on before. And we wanna talk about working and 100% be disability sort of the ins and outs of what does that mean if you're TDIU, if you're 100%, and some of those very common questions that veterans have when they're 100%.
Leah Bucholz:So Rebecca, just for those of our viewers that don't know you, do you wanna give a quick intro about yourself so they can get familiarized with you?
Rebecca Deming:Sure, my name is Rebecca Deming. I own a law firm called ProVet Legal and we specialize exclusively in VA disability benefits and appeals. And I'm the wife of a Navy veteran. And I have spent a long time before I got into VA disability working in policy and kind of training with military. Actually met my husband in Afghanistan.
Rebecca Deming:So I am not a veteran myself, but I have spent a lot of time with service members and understand a lot of the stuff that you guys are exposed to and the stuff that you guys have gone through. Happy to be here, thanks for having me, Leah.
Leah Bucholz:Yes, thank you for joining us again. It's always a pleasure to have you on and I know the viewers have given us a lot of positive feedback about your insights because there's just so much that goes around and there's a lot of information out there, but it's hard to determine what is relevant, what is legit, da.gov has a lot of great help docs out there that we've gone over that give some information, but I'm interested to see some of your insights. So I'm gonna just start off with some of the most frequent questions that we get about this, and the first one is, can you explain what total disability means in the context of VA claims?
Rebecca Deming:Sure. So total disability or 100% disability means that the veteran is combined at 100% disabled. It could be one condition that VA considers totally disabling, or it could be a number of conditions. And we did another podcast together a while back that talks about how VA combines ratings. It's not a straight addition.
Rebecca Deming:It's not like 50 plus 50 equals 100. They use a complex formula. And when you plug in your ratings into that formula, if those, I don't want say add up, but combine up to be 100%, then you get rated 100% disabled. I know there's a lot of, there's kind of some misconceptions out there. People have it in their head that if you're 100% disabled vet, that you must be an amputee or you must be in a wheelchair or be in a padded room or, you know, like they have this vision of what a 100% totally disabled veteran is.
Rebecca Deming:And that's really not the case because VA has different ways of rating multiple different conditions. A lot of the veterans can be pretty functional in different aspects of their lives. They're just dealing with some visible and some invisible disabilities and injuries. So the main way to get there is if your conditions combine to 100%. But there is another way, and people often confuse these, which is called total disability based on individual unemployability or TDIU.
Rebecca Deming:And that's where you don't meet that 100% criteria. Conditions don't add up or combine up to 100%, but because of your conditions, you're unable to, essentially you're unable to work, but we'll talk more about that. There's some nuance into what it means to be able to secure and maintain substantially gainful employment. But if your disabilities prevent you from really holding down a steady job, then VA will often pay you at the 100% level even if your conditions don't combine.
Leah Bucholz:Okay, so I know that can get kind of tricky too and I'm sure we're gonna get into that. So when we're talking about veterans with 100% disability ratings, can you break down a little bit more about whether they can work or not? Like you mentioned the scheduler, can you talk a little bit more about that?
Rebecca Deming:Yes, so if your conditions combined to 100%, so the way the VA does the math and you have enough that you're 95 or more and it rounds up to 100, you can work, you could be the CEO of a Fortune 500 company. Currently there are no income limitations. There's always political talk about changing the regulations, but there are no income limits on your ability to get disability pay and be able to work. So you can certainly do both. Now, if you're only rated 100% or total disability based on TDIU, based
Leah Bucholz:on
Rebecca Deming:unemployability, then there's a little more nuance into it. And it's not as straightforward as it seems. A lot of times veterans will ask me, well, I'm getting 100% based on TDIU. Can I work? And I always say, well, that's not for me to say, and that's not for VA to say whether you can work or not.
Rebecca Deming:I mean, you're getting it because you've presented to VA that you can't work or that you can't maintain substantially gainful employment. So if your conditions change and you're able to work, then that's great. I always do encourage my clients that if they can work, they should. VA can't tell you you can't work. They can't call your employer and say he's not able to work, she's not able to work.
Rebecca Deming:But if your conditions change and you are able to work, then you should probably let VA know. Although I would give it some time because the regulation says you have to be able to secure and maintain. So you have to able to get a job. You have to able to get through the interview process and somebody has to want to hire you. But then you have to be able to keep that job.
Rebecca Deming:And so we have a lot of people because of their mental disabilities or because of their physical disabilities, they get fired from jobs, they lose their temper and they quit jobs after a couple of weeks. And so if you're chronically, job hunting or job hopping, I should say, that's not substantially, that's not maintaining substantially gainful employment. So you might be employed for most of the year, but you've had 10 employers in the past year. You might have had two employers in the past year, but you're just constantly switching jobs because of your disabilities, then that's something that's going be a little bit more nuanced. And VA is going look at it.
Rebecca Deming:They're going to see the way that VA evaluates you, they communicate with the Social Security Administration. So they'll get your Social Security earnings statements. If they see that you're making above the poverty level, then they'll reevaluate you and they'll send you a letter saying we're proposing to sever, but send us evidence if you think that this proposal is incorrect. And at that point, it would really benefit somebody cause it is so nuanced. It would benefit somebody to work with an accredited claims agent or an accredited attorney or somebody to look at whether you fit into one of those categories of a protected work environment or marginal employment that would allow you to keep receiving TDIU even though you're earning above the poverty line.
Leah Bucholz:Sure, so it's interesting, I just had a thought while you were talking about that, is that many veterans probably don't even know this, but as you mentioned, veterans that are 100% scheduler, they could be working in any capacity, they could be the CEO of a Fortune 500 company, etcetera. Veterans can actually still serve in like the reserve or National Guard component at 100% disability as well. So as a PA, I've worked in both active component and the reserve component, and I have had many patients that are still serving in the military that are 100% disabled. Now, I don't wanna get too in the weeds on that, but I'm just showing this as a parallel that you can still function in many capacities. You can even deploy in a combat zone with 100% VA disability so long as your disabilities are within a specific framework that don't make you non deployable.
Leah Bucholz:But that's a whole another issue. But just showing again that being 100% disabled does not necessarily mean that you're just incapacitated and unable to do job functions. So again, I guess the bottom line between the difference between scheduler 100% VA disability and TDIU, if you had to give a one liner for that, what would you say the biggest important and part of those differences are?
Rebecca Deming:I would say the biggest difference is that TDIU is sort of a gap fill and it's to compensate people who are unable to work or who are significantly impaired in their economic endeavors because of service connected disabilities if they don't meet the otherwise schedule or rating criteria for 100%.
Leah Bucholz:Makes sense. What are the implications of working if you're a DIU? So what happens if What happens if you do?
Rebecca Deming:Yeah, good question. So if you do start working, that's fine. I encourage people to try to work if they can. And it is a personal it's a nuanced issue because there's physical and there's mental impact of holding down jobs. Especially if you're dealing with some pretty severe mental health disabilities, sometimes like, could you show up to the job?
Rebecca Deming:Yes. But after a while it starts to wear on you and on your family and it causes a lot of other issues. So it's a decision, but a lot of people are not able to continue working. If you decide to start working, you should keep good records of when you started working, but there's a few exceptions. So if you're not, like I mentioned earlier, if if you're not able to maintain that job for a while, then VA doesn't consider that substantially gainful.
Rebecca Deming:Consider it marginal employment if you're not able to keep the job for a while. There's also a sheltered work environment. And so a lot of veterans get hired by companies that have special programs that make special accommodations, like above and beyond the regular ADA accommodations for veterans. Or it might be a family company. It's like, well, we know that she doesn't really show up to work all the time and she calls out sick because of her migraines or can't lift heavy stuff, even though that's a major part of the job, but she's our sister.
Rebecca Deming:So we're going to hire her and keep paying her. So if it's a sheltered work environment and that's a very nuanced, case very law around what constitutes sheltered and what doesn't, that would be something where if VA said, Hey, you're working, proposing to sever TDIU, you'd want to reach out and contact an accredited claims agent or an accredited attorney to determine whether your work was sheltered or not. But yeah, they will start severing it after about a year if they see that They will propose to start severing it after about a year if they see that you're working and earning above the poverty line.
Leah Bucholz:Can they like claw back some of the disability payments too? If you've, let's say they catch it a year or two later, will they pull back? I know that might be a case by case situation.
Rebecca Deming:It's a case by case situation. Assuming there's no fraud, they won't pull it back. Usually they'll say, yeah, we're severing it from the state, but we're only gonna stop paying you prospectively. I have seen some cases where they'll allege someone is fraudulently claiming TDIU. I think it's pretty rare for one.
Rebecca Deming:I think most people don't need to worry about that. But if your circumstances do change and you're able to get a great job and keep that job for more than a year, then it probably would be in your interest. I know it's hard to say turn down money, but if you really don't qualify for TDIU anymore, then it probably is in your interest. I'm seeing a trend where VA rightfully or wrongfully is putting that burden on the veteran to kind of self report that their circumstances have changed.
Leah Bucholz:Sure. What about part time work?
Rebecca Deming:Part time work, there's no fine line or line in the sand where it's, oh, it's part time, you're fine. If you do part time work, but you're an attorney and you're making decent money or, you know, you're a physician assistant or a doctor, but you're only working a few days a week, it's really the income level and then whether it's a sheltered work environment and whether you're maintaining that position for a long period of time. You know, if you're mowing your neighbor's lawn for cash and you're not reporting it to the Social Security Administration, you should report all of your income to the Social Security Administration because that is the law. But, you know, if VA has no way of knowing all of if you're babysitting on the side, if you're getting tips for bartending your neighbor's party or something, there are certain things that aren't reported. VA is not going to have any way of knowing that you've got that money.
Rebecca Deming:If you're earning can you talk to a tax expert on on what to report and what not to report? But, yeah, it's not like, oh, well, I'm only working forty hour I'm only working twenty hours a week, so therefore, it doesn't qualify as substantially gainful.
Leah Bucholz:But there are some circumstances essentially that if you are working over that poverty level, if it can be considered sheltered based on your unique situation, there's this kind of window of, well, you're over that threshold, but it is still sheltered, so you may still qualify and it's just case by case, as you mentioned, and best to follow-up with an accredited attorney or claims agent to help you determine if you fall into those areas. Exactly. That's interesting. I did not know that. So what should a veteran consider before deciding return to work while rated totally disabled?
Leah Bucholz:And I know you kind of touched on that, but are there any other factors that you would really consider or tell a veteran to help with? I
Rebecca Deming:mean, I'm not an employment attorney. I know there are a lot of veterans that ask, well, am I going to have to report this disability to my employer? And if you need an accommodation, then you probably do want to report it to your employer. They might just think that you're not able to keep working. But if you have a disability, there's the ADA, the Americans with Disabilities Act, that protects workers that have disabilities.
Rebecca Deming:So you might consider sharing information. I know it's different if certain professions, like if you're a pilot, the FAA regulates it. Again, if you have a disability that's diagnosed and you're getting benefits for and you're not reporting it to a federally regulated employer, you're probably getting yourself into some hot water there. So you might consider disclosing your disability to your employer. That's between you, your employment lawyer, and your employer.
Rebecca Deming:Otherwise, if you're 100% based on scheduler, I wouldn't say there's anything that you need to consider about going back to work. If you're 100% based on TDIU, I think you want to kind of consider, is this something that you think you're likely going to be able to maintain without having a significant negative impact on the rest of your life? I've seen people try to go back to work because they really do want to be productive members of society and then their marriages fall apart because it's causing such a stressor on their mental health and it's impacting their lives in other ways. And so I think it's really a personal decision to talk with your therapist, talk with your doctors, talk with your spouse, if you have one, to figure out whether you want to get back into the workforce. And if it's something that you're likely going to maintain, I mean, is it worth it to you?
Rebecca Deming:And this really, it's a personal decision. It's more, you know, I'm giving practical guidance from the people I've worked with and less than legal guidance right now. But is it worth it to you to trigger VA to potentially look into your benefits if you're pretty sure that you're only going to do this for a few months and it's probably not going to work out or it's going to have major negative impact on your life. And then if you do get back to work and you try it out, dip your toes in the water, so to speak, and it works out well, then there's that question. It's a gray line, do you have a duty to report to VA that you've been working?
Rebecca Deming:And VA is pulling the Social Security earnings statements, so they should be able to see it. But I think VA has been moving more in the direction of they would like you to report that you now have substantial gainful employment. Does the veteran need to know whether it's sheltered or not? Mean, there's definitely some gray area there still.
Leah Bucholz:Sure. There's just so much about individual unemployability that I think we could touch on, and maybe we'll save that for another video, but just what qualifies somebody? Because I know there's the traditional, hey, you've gotta have these different percentages to be IU and then there's this extra scheduler way to get IU as well. We could probably do a whole entire another video on that. I don't know if you have any comments on that or thoughts.
Rebecca Deming:Yeah, mean, can definitely So when you mentioned the scheduler and the extra scheduler TDIU, I'll just touch on it really quickly and we can certainly do another video if people are interested in the math. But typically for the regular VA adjudicator to be able to grant you TDIU, you have to either have one condition rated 60% disabling or more, or you have to be combined at least 70% with one condition rated 40% or more. There's some complex ways. And if you have a back condition at 20 and you've got bilateral radiculopathy from the back, be able to sometimes consider that a single disability. So there's some nuance into how they determine whether you meet those requirements.
Rebecca Deming:If you meet those requirements, then the regular VA rater can consider whether you meet unemployability. If you're below that, but there's kind of extraordinary circumstances that prevent you from working because of your training and your education and the type of disability you have, then VA has to send that off to the director of compensation in Washington, DC with a memorandum and they get an opinion back about whether you should still get unemployability. So we've had it's rare, but we have had some cases where someone is rated 40% combined. They don't meet the scheduler requirements for TDIU, but they're totally deaf and their education was as a professor or something. There's just no accommodations.
Rebecca Deming:They're not able to take on other jobs. So even though they're only 40% disabled, they're not able to work. And VA has determined, we've shown that they're unemployable. And so VA will grant extra scheduler unemployability because of that.
Leah Bucholz:Sure, or, you know, one that I'm thinking of right now is you mentioned pilots, right? Like, you know, I know from my experience in the military being a flight PA, it's not exactly the same as the FAA, but a lot of the same requirements. They're very strict because you're dealing with people's lives when you're up in the air. Let's say somebody's a pilot and they've got really severe vertigo. Maybe they're 40% for vertigo and they just can't get a FAA waiver.
Leah Bucholz:That might be another example of due to their training, but to no fault of their own, they're not meeting that minimum threshold, but they can't perform in the capacity of their occupation. So it's good to know that VA has these extra scheduler ways to sort of help individuals in those circumstances. But are there any other programs that you can think of to support veterans that are wanting to work while they are disabled?
Rebecca Deming:There is the Vocational Rehabilitation and Education program, and I'm not as well versed in it. I mean, it's not the area of law that we practice in our firm, but I've had a lot of clients go through wonderful program because if you qualify for it, so like you said, let's say that you're a pilot, but because of your medications you're taking or something, you can't perform the duties in the air. They're afraid you're going to pass out in the air or something's going to happen. If you determine with the Voc Rehab folks, if you get accepted into the program and determine that you want to go to school to become an accountant, they'll pay for this. I mean, it's almost like the GI bill or Chapter 35 benefits.
Rebecca Deming:I mean, they'll pay a significant amount of money to get you educated and trained up in a new area. It's a really wonderful program. Now, if you go through that, sometimes some of the determinations from the voc rehab folks can either help or hurt your claim for unemployability. So there might be people who have gotten unemployability and they're like, well, now that stuff's gotten better and my kids are out of the house or something's changed in my life, I feel like I have the ability to focus on something else. So if your circumstances change, I would suggest looking into the Voc Rehab program, but just understand that it might impact your continued entitlement to TDIU if you've already been awarded.
Leah Bucholz:Yeah, voc rehab is really cool. I have a family member that did it and it helped him tremendously. And he was able to go back to school and get some type of certificate for like computer, I don't wanna call it computer engineering, but it's some type of computer job. And he's doing really well, it was a great program. They gave him BAH while he was in it, or some kind of housing stipend.
Leah Bucholz:They paid for his school to make it affordable for him. But there was like a process, you know, where it had the application had to be reviewed and approved, and they wanna make sure you're you know, this is an investment they're gonna make within you that you're gonna be successful at. So, you know, do you have a lot of red flags? I don't know all the criteria they look at and maybe we'll get someone who specializes in that area on sometime. But they do look at like, are you gonna be someone who's gonna be responsible and going or different things like that.
Leah Bucholz:So thank you very much for touching on all of these things. I know there are a lot of questions people have about IU, so if you guys have some questions, please drop them in the comments. Also I'm gonna put a link up to Rebecca's website at ProVet Legal. If you have any questions regarding IU or just legal questions in general about your case. She's got a great team over there that helps our veteran community kind of get through some of the red tape that they've been facing on their claims.
Leah Bucholz:Thanks for hanging out, Rebecca. Do you have any last words?
Rebecca Deming:I could talk about this all day long but I won't keep you guys. We can do another video. Thank you so much for having me, Leah. All
Leah Bucholz:right, all right. Well thanks guys for watching and we'll talk
Rebecca Deming:to you all soon.