There are two ways for a claimant to achieve a total disability rating.
The first possibility is to qualify for a 100 percent rating under the rating schedule set forth in part 4 of 38 C.F.R.
The second possibility is to meet the standards of the regulations governing "individual unemployability" (IU).
IU exists as a concept to cover the situation in which a service-connected disability makes the veteran unemployable,
even though an average person with a similar impairment could secure and retain substantial gainful employment.
Since the rating schedule focuses on the average person, the concept of IU is necessary to take into acount
circumstances such as education and past employment history that are peculiar to the claimant and to implement
"the established policy of the Department of Veterans' Affairs that all veterans who are unable to secure and follow a substantially
gainful occupation by reason of service-connected disabilities shall be rated totally disabled."
On occasion the VA has denied claims for IU because it believes that the combined effects of the veteran's service-connected and
non-service-connected conditions have made the veteran unemployable. However, this is not the legal issue to be resolved when a claim for
IU is filed; the sole issue is the effect of the veteran's service-connected conditions(s) on the veterans' employability.
Therefore, in support of IU claims, Veterans' and Advocates should isolate the service-connected conditions and then argue that, at least hypothetically, these could
make an individual with the veteran's background unemployable.
Most veterans struggle heroically to work for years before constant pain and stress forces them to stop working. If a veterans' service-connected conditions
remained static (that is, if if there was no change in the severity of the disability), they could not claim entitlement to IU benefits.
But if they had given in to their disabilities and had not worked, it is entirely possible that the VA would have granted them IU benefits.
This rule seems to penalize those people people that endure great pain in order to function in society.
A veteran suffering from a service-connected condition who has struggled for years to work may develop secondary condition, a neurosis, because of the
service-connected physical disability. The advocate should tactfully explore this possibility and if medical evidence reveals the existance of a secondary mental
condition, the advocate should file a claim for a secondary mental disorder, the advocate will have a stronger argument for total disability benefits.
In order to apply for IU, a calimant must file a VA form 21-8940, Application for Increased Compensation Based on Unemployability.
Veterans' and Advocates should not wait to file claims for IU until the VA sends them this form. Simply send the VA a letter stating that he or she wishes to be considered for IU benefits
and to please send all the appropriate forms so that the claim may be perfected.
For More Information Write to:
NATIONAL VETERANS' LEGAL SERVICES PROJECT (NVLSP)
2001 S Street, N.W. Suite 610,
Washington, DC 20009