TDIU claim

Role of a Vocational Expert in a TDIU claim

Authors: Devin Lessne, MA, MS, CRC, CDMS, ABVE/F, PVE, IPEC and Claire Ziegler, MA, CRC, IPEC

A vocational assessment can provide valuable information for decision makers regarding Total Disability Individual Unemployability cases, also known as TDIU cases. A vocational assessment can help answer the question as to whether a veteran’s service connected disabilities prevent him or her from securing substantially gainful employment. The Department of Veterans Affairs (VA) defines substantially gainful employment as “employment that is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides” (M21-1MR, Part V, Subpart ii, Chapter 1, Section B).  The VA specifies that substantially gainful employment cannot include sheltered or protected employment. Further, if a veteran’s annual wages are below the poverty level, this employment cannot be considered substantially gainful.  If a veteran is unable to secure substantially gainful employment as a result of service related disability, this entitles the veteran to receive 100% compensation for TDIU.

Often, decision makers in these types of cases rely on the opinion of physicians and other medical providers to determine if a veteran can still obtain substantially gainful employment.  However, these individuals do not have specialized vocational experience or expertise and are not equipped to determine the true feasibility of a veteran’s ability to work.  A vocational assessment can help bridge the gap between the documented medical and psychological limitations and residual functional limitations within the context of jobs in the present labor market.

A vocational assessment is a multi-step process consisting of many different components and is prepared by a vocational expert (VE).  The vocational rehabilitation assessment must have a methodology that fulfills the VA requirements to address the critical questions in an TDIU matter. These questions include:

  • Is the veteran disabled?
  • What is the estimated date of TDIU?
  • Was past work sheltered or protected employment?
  • Vocational opinion based on both objective and subjective evidence regarding the estimated date the veteran was unable to work at SGE.

Vocational assessments are structured by topic, starting with the reason for the referral. All records to be considered in the matter are summarized in a report. A records summary is critical because it outlines the objective and subjective evidence in the case. This includes a review of the medical, psychological, and other records contained in the file.  Additionally, a thorough interview is conducted with the veteran regarding symptomology, limitations, educational history, and work history.

This information is synthesized and residual functional capacity (RFC) of the veteran is identified.  Residual functional capacity is the functional ability a person has after the effects of the disabling condition.  Residual functional capacity may relate to physical and/or mental abilities which may result in restrictions on certain behaviors and/or exposure to specific environments. The RFC identified in the records are matched with the veteran’s past work as defined in the Dictionary of Occupational Titles (DOT) and the functional demands of that job. If the functional limitations preclude past work, the VE will perform a transferable skills analysis. No more than the past 15 years of work are analyzed as it is no longer realistic to expect skills to continue after 15 years (Havraneck, J., 2007; Weed, R. O., & Field, T.F., 2001).   For example, if a veteran had worked for the previous 15 years in unskilled, heavy demand jobs there would be no skills that would transfer to other work.  If the veteran has no past skilled work or the RFC precludes skills from past work, the VE must consider other, unskilled jobs that both exist in the economy and that would fit within the RFC. In addition, the vocational expert will also provide analysis regarding the labor market and the actual availability of jobs in the current economy. As part of the conclusion, specific records must be cited to support the RFC and the date the RFC was established. If the RFC precludes any unskilled work in the economy, the conclusion would be that the veteran could not work.  This analysis also allows the VE to make a determination as to when the veteran became unable to work.

Decision makers are often faced with challenges when evaluating TDIU case records without a vocational assessment.  Information contained in a veteran’s records can be both confusing and contradictory. Identifying residual functional capacities is difficult because they may not be clearly stated in the records.  The veteran may have unsuccessful work attempts or a history of accommodated work in the past.  TDIU decision makers may be unable to thoroughly unpack and analyze this information effectively. Additionally, decision makers may struggle to identify the date when the veteran became unable to work. A VE has the skills to identify residual functional capacities, past relevant work, and determine how the veteran’s service connected disabilities may or may not limit their ability to work and earn a substantially gainful income.  If the veteran is unable to earn substantially gainful income as a result of his or her service connected disabilities, it would warrant a 100% TDIU rating from the VA. A vocational assessment from a qualified VE can be invaluable in supporting a veteran’s TDIU claim.

 

References

Determining Disability, Unemployability, and Marginal Employment. M21-1MR, Part V, Subpart ii, Chapter 1, Section B (2018).

Havraneck, J. (2007). Advanced issues in forensic rehabilitation (199). Athens, GA: Elliott & Fitzpatrick.

Total Disability Ratings for Compensation Based on Unemployability of the Individual. 38 CFR § 4.16(a) (2011).

Weed, R. O., & Field, T. F. (2001). Transferable skills analysis. Rehabilitation Consultants  Handbook (pp. 101-103). Athens, GA: Elliott and Fitzpatrick, Inc.