Veterans Disability – Case Law

Case Law

VA is not requried to obtain a Vocational Expert Testimony or Industiral Survey to Deny Total Disability Individual Unemployement (TDIU) to deny a Veteran Individual Unemployment. But they must use the Vocational Experts findings in thier opinion!

This is a major difference between VA Adjudication and Social Security ODAR Adjudication. Social Security has to use a Vocational Expert at Step 4 and Step 5.



Smith v. Shinseki, 2010 U.S. App. Vet. Claims LEXIS 1470 (U.S. App. Vet. Cl., Aug. 11, 2010)
OVERVIEW: The veteran had a combined service-connected disability rating of 80 percent. Although the Board found that his 80 percent combined rating (with at least one disability rated at 40 percent) met the threshold requirements for a TDIU claim, it denied his claim after taking into account his work history, his educational background, and reports from VA medical examiners. While the medical examiners did not suggest that he could perform his previous employment as a laborer in the coal mines or a carpenter, they concluded that he was not prevented from performing light or sedentary jobs. The court rejected the veteran’s argument that VA was required to obtain an industrial survey from a vocational expert to evaluate his claim. Given that a TDIU determination under § 4.16 did not require any analysis of the actual opportunities available in the job market, the court declined to conclude that an industrial survey was “necessary” for that purpose in connection with TDIU claims. Because job market information was not required, the duty to assist under 38 U.S.C.S. § 5103A did not require the VA to provide such information through an industrial survey.

 This is why you need a ∞ TDIU Vocational Evaluation  performed by a Vocational Expert so that the court will have the inforation assessed for them, unlike Social Security which has to use Vocational Experts, 

The VA doesnt, BUT must apply the Vocational Experts opinion to the VA’s Decision.

The Court was left scratching its head as to what jobs this disabled veteran could obtain and work since VA did not address that:In a later case in July 2014 the Appeals Court for Veterans Claims reasoned in McClain v. Gibson that VA must provide a detailed explanation when it decides that a severely disabled veteran is ’employable’ as opposed to unemployable.


Evan McLain, Appellant, v. Sloan D. Gibson, Acting Secretary of Veterans Affairs, Appellee.
No. 13-2264

2014 U.S. App. Vet. Claims LEXIS 1235   July 17, 2014, Decided

“McClain [Veteran] argues that the Board provided an inadequate statement of reasons or bases for its denial of TDIU. To show entitlement to TDIU, the evidence must demonstrate an inability to undertake substantially gainful employment as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(a) (2014) (TDIU is awarded when a disabled person is”unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities”). The Board “may not reject [a claim for TDIU] without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.”Beaty v. Brown, 6 Vet.App. 532, 537 (1994). Although the Board need not find that  [*2] a particular job exists in the economy, Smith v.Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011), the Board’s statement regarding employability must do more than “merely allude to educational and occupational history, attempt in no way to relate these factors to the disabilities of the appellant, and conclude that some form of employment is available.” Gleicher v. Derwinski, 2 Vet. App. 26, 28 (1991). Moreover, the Board’s explanation for its determination must be understandable to the claimant and facilitate judicial review. Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board’s statement “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”).

Mr. McLain argues that the Board inadequately explained its TDIU determination because it did not address how difficult it would be for him to find employment given the limitations noted by medical examiners. The May 2010 and January 2012 examinations relied on by the Board found that Mr. McLain’s disabilities did not preclude him from employment in a loosely supervised setting, with minimal social interaction, where there was little background noise or phone  [*3] communication, and where alarms and exact communication would not be needed. Record (R.) at 36, 48-49. Although the Board relied on these examiners’ ultimate conclusions that Mr. McLain could be employed in some kinds of jobs, the Board did not address the limitations noted by the examiners, nor did it attempt to relate these limitations to Mr. McLain’s educational and occupational history or explain what kinds of jobs Mr. McLain could obtain. See Beaty andGleicher, both supra. The Board’s failure to do so renders its statement of reasons or bases inadequate and warrants remand.1Allday,supra; see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate where the Board has, inter alia, failed to provide an adequate statement of reasons or bases).”


NOTE: McClain is an unpublished opinion and not to be cited as precedent.  However I believe its teachings and principles are important to grasp in the area of TDIU claims.

Neurological Disorders Veterans TDIU


There are many Veterans Suffering From Neurological Disorders

The pain experienced by veterans suffering from neurological disorders is unlike anything else. It can affect every part of veterans’ lives, from the ability to spend time with family to the ability to work or participate in the activities that they once enjoyed.

Veteran’s often are unable to maintain employment or obtain employment due to disabilities and vocational limitations related to their neurological disorders, including compression neuropathies, like carpal tunnel syndrome or ulnar neuropathy, and amyotrophic lateral sclerosis (ALS) or “Lou Gehrig’s Disease.”

Peripheral Neuropathy

Peripheral neuropathy is a problem with the peripheral nervous system — the nerves that carry information to and from the brain and spinal cord. The problem produces pain, loss of sensation and movement difficulties. There can be many service-related accidents or injuries that cause peripheral neuropathy. This can inhibit your hand-eye coordination, manual dexterity, finger dexterity, reaching, handling, walking and other limitations that can affect your employability. If you are unable to maintain employment and need to have a TDIU Assessment to show how this affects your ability to maintain and obtain employment you should consider a TDIU Vocational Evaluation.

Amyotrophic Lateral Sclerosis or Lou Gehrig’s Disease

Amyotrophic lateral sclerosis — often referred to as Lou Gehrig’s Disease — is a serious and progressive disease that affects nerve cells in the brain and the spinal cord. A veteran with ALS may experience deterioration of the motor neurons that limits his or her ability to control movement. Eventually, it may lead to paralysis or death.

All veterans who develop ALS at any time after serving in the military may be eligible for compensation for that disability.

Neurological Disorders in Gulf War Veterans

Many veterans who were deployed to the Persian Gulf for Operations Desert Shield and Desert Storm were exposed to a dangerous mix of different chemicals and vaccines. They returned with special health problems. These problems include numbness, loss of muscle strength, loss of control of bowel or bladder, muscle pain, weakness, headache, brain damage, memory loss, sleep disorders and gastrointestinal problems. While they were not taken seriously at first, they eventually became known as Gulf War Syndrome.


Radiculopathy is not a specific condition, but a problem that affects the nerves and causes them not to work properly. The result is pain, weakness, numbness and lack of muscle control. If you have been diagnosed, you may be eligible for veterans disability benefits under TDIU if you can how Expert proof on how this limitation affects your unemployability.

Veterans Disability Issues

lf Veterans of the first Gulf War are defined by the Department of Veterans Affairs as men and women who served in Saudi Arabia, Iraq, Kuwait and other countries in the Persian Gulf. Approximately 697,000 troops were deployed to the region in the years 1990-1991.

Gulf War vets have many of the same issues and disabilities as veterans of other wars. But They frequently experience problems that are unique to military personnel who fought in the region. Many believe it was due to some type of toxin exposure.

In particular, Gulf War vets are affected by a medically unexplained illness popularly called Gulf War Syndrome. Symptoms of Gulf War Syndrome can include fatigue, headaches, joint pain, indigestion, insomnia, dizziness, respiratory disorders, and memory problems.

Despite the frequent use of the phrase Gulf War Syndrome in civilian media, the VA prefers not to use that term and uses phrases such as “undiagnosed illness” and medically unexplained chronic multisymptom illnesses.” Because the symptoms of the illness vary enormously from vet to vet, the condition does not fit the formal definition of the term “syndrome,” according to the VA.

Presumptive Gulf War Conditions

The VA presumes that certain chronic illnesses that persist for more than six months in this cohort of veterans are related to service in the Gulf region. They include:

• Chronic fatigue syndrome

• Fibromyalgia

• Gastrointestinal disorders

• Undiagnosed illness that includes symptoms such as abnormal weight loss, fatigue, cardiovascular disease, muscle and joint pain, headache, menstrual disorders, neurological and psychological problems, skin conditions, respiratory disorders and sleep disturbances, popularly called Gulf War Syndrome

• Infectious diseases that include malaria, brucellosis, campylobacter jejuni, Q fever, mycobacterium tuberculosis, non-typhoid salmonella, shigella, visceral leishmaniasis, and West Nile virus

• Amyotrophic lateral sclerosis (ALS)

The VA continues to conduct research into these and other conditions associated with service in the Gulf War during 1990-1991. Of particular interest is the source of so-called Gulf War Syndrome, and numerous causes have been suggested.

Possible Causes of Gulf War Syndrome

Possible causes of this medically elusive illness include:

• Vaccinations, especially vaccinations for anthrax and botulism

• Oil well fires, petroleum and smoke

• Pesticides

• Pyriostigmine bromide, used as a re-treatment against militarized nerve agents

• Biological and chemical weapons

• Sand, dust and particles

• Depleted uranium

• Toxic embedded fragments (shrapnel)

• Noise

•Occupational hazards, such as chemicals, paint and machinery


If you have a service connected disability and are unemployed and believe that your disability is the cause you should consider a TDIU Vocational Evaluation.

When a Veterans Representatives & Attorneys need an objective Vocational Assessment of a claimant’s Past Relevant Work, & Current Vocational Capabilities, they turn to us for Answers.

We have been providing Forensic Vocational Expert Services and Occupational assessments for over 17 years. We have also served as an unbiased expert for the U.S. Federal Government in more than 500  cases. We have performed over 3,000 assessments and have a specializations in brain injury (TBI), and Mental Health/Psychological issues.


Forensic Vocational Expert

Veterans Having a Hard time Finding Employment

Never Drop your Standards. Many Armed Forces at the time of leaving thier post, have tend to have the highest standards of thier life! Many times upon leaving they tend to let old habits creep in and before they are aware of it, thier daily routine to maintain physical stability is lost. Returning to civilian life after years of active military service should be a joyous occasion for veterans. However, many returning soldiers have a difficult time adjusting to life outside the armed forces, which may contribute to veteran unemployment rates well above the national average.


Veterans who served after the September 11 attacks have an unemployment rate of about 10%, compared to the national average of 7.3%. While this is down from a peak veteran unemployment rate of 13.1% in December of 2011, this still means that 246,000 veterans who have served in the past 13 years are without work.

Female veterans have had consistently higher rates of unemployment than male veterans. This may partially be due to the fact that many female veterans are mothers who choose to stay outside of the workforce and focus on child rearing after their deployments. However, people who study employment statistics have also pointed to fewer available services for female vets, and a tendency to not self-identify as a veteran, which may affect their participation in preferential hiring efforts.


The federal government has stepped up efforts to increase veteran hiring, and has created incentives for employers who give preference to veterans. These incentives include reimbursement for veterans’ salaries and training, as well as tax credits for employers who hire veterans.

Additionally, the government has created a website ( to specifically assist veterans in finding employment, job training, or resources to continue their education. The website also offers a feature where veterans can enter their branch of service, military pay grade, and military occupation code in order to see what career areas may be a fit for their particular skills.

Many veterans who are willing to work are simply unable to do so on account of service-related injuries or disabilities. For these veterans, applying for disability benefits may provide the extra income needed to support themselves and their families.


PTSD is a result of a person experiencing a traumatic event. Any number of situations can trigger PTSD for service members, as they are routinely exposed to stressful and traumatic occurrences.

Some of the Common Symptoms of PTSD may include:

  • Panic Attacks
  • Generalized Anxiety
  • Reliving the event, or flashbacks
  • Feelings of detachment, emotional numbness or depression
  • Avoiding situations that are reminiscent of the traumatic event
  • Not talking about the traumatic event
  • Living in a constant state of alertness or readiness for danger
  • Loss of interest in normal daily activities

Veterans experiencing these symptoms should contact a health care professional to determine whether they are suffering from PTSD.

There are many combat Veterans who have developed post-traumatic stress disorder (PTSD) as a result of military service are eligible to receive disability compensation for their condition. PTSD is a serious disorder that requires ongoing treatment which may not be possible if the veteran is not awarded an adequate amount from the VA.


The VA, Veterans Disability and what is needed to get a PTSD Disability Rating:

In the past, the VA has maintained strict requirements for claiming PTSD disability but in recent years these have become less stringent. Since 2010, veterans are no longer required to prove that the PTSD-triggering event actually occurred. This applies to combat veterans and any veteran who experienced fear of hostile terrorist activity.


  • A current PTSD diagnosis
  • A statement about the event that caused their trauma
  • Consistency between the veteran’s statement and the conditions of their service
  • A medical opinion that the stressor had a sufficient enough impact on them to cause PTSD

Veterans Disability

Don’t Let the VA Employees be the only one to decide a Veterans Disability & Employability.  There are some claims, a veteran establishes that he is unable to return to his former employment because of his service-connected disability.  However that is not the only issue involved in individual unemployability (TDIU), the question then becomes whether the veteran has the education, work experience, transferrable skills and adequate physical or mental ability to secure and maintain Other Work. The VA often relies on their VA physicians or Social Workers’ to answer this question. But, in fact, vocational experts are the only ones who are qualified to provide an opinion on this issue.

Vocational experts can evaluate the opportunities in the contemporary labor market against the veteran’s peculiar circumstances, offering an opinion as to the veteran’s potential for obtaining another job.

When the VA obtains there opinion its often in a report known as Social & Industrial Survey , to support a veteran’s claim of unemployability due to service-connected disabilities. However, the person the VA has completing this form rarely has training, education, or experience in vocational issues, vocational limitations, nor medical and psychological aspects of disability. This is a true Veterans Disability Assessment.

The United States Department of Veteran’s Affairs (VA) is a government run military benefit system that is responsible for administering programs for veterans’ benefits, their families, and survivors. Veterans Disability- VA regulations state that “all veterans who are unable to secure and follow a “substantial gainful occupation” by reason of a service-connected disability shall be rated totally disabled.” (38 C.F. R. Sect 4.16).

you can get 100% Veterans Disability through “Individual Unemployability” or IU is a way for the VA to compensate veterans at the 100 percent rate who are unable to work because of their service connected disability. This is the fasted-growing part of the disability compensation program.

Entitlement to 100% Veterans Disability due to TDIU requires evidence of unemployment due to the disability in question and medical evidence that a veteran’s service-connected disability renders him or her totally disabled and unemployable. A Vocational Expert report can assist in documenting Total Disability.

The recent US Court of Appeals case of Smith v. Shinski (No 2010-7145) using Social Security case law indicates the Veteran’s Administration does not have to use Vocational Experts in TDIU (Total Disability, Individual Unemployability) cases but that the VA adjudicator must consider a report documenting the Veteran’s unemployability. It is clear from this decision that the ultimate question is the employability of the Veteran, not the availability of jobs they can perform.

Specifically, 38 C.F.R. § 4.16 states in part, that if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, he or she may be assigned a TDIU rating.  Of course there are other requirements for IU benefits, but even if those requirements are met, if a veteran is still able to secure or follow a substantially gainful occupation, then IU will be denied.

A quality Veterans Disability Assessment needs to be done by a vocational expert to document the vocational aspects of the veterans disability issues that a doctor cannot do.

Why Us for TDIU – Veterans Disability


When a Veterans Representatives & Attorneys need an objective Vocational Assessment of a claimant’s Past Relevant Work, & Current Vocational Capabilities, they turn to us for Answers.

We have been providing Forensic Vocational Expert Services and Occupational assessments for over 17 years. We have also served as an unbiased expert for the U.S. Federal Government in more than 500  cases. We have performed over 3,000 assessments and have a specializations in brain injury (TBI), and Mental Health issues.

We are one of the few Vocational Experts to have in-depth Vocational & Psychological testing experience as well as to have worked as a on contract for the Social Security Administration ODAR courts, as well as for claimants.

We choose our evaluation tests based on the individuals’ needs and do not use a cookie cutter approach. We use standardized diagnostic vocational interview, but can also test the claimant using the most modern techniques, including a computerized measurement of aptitudes and abilities. We are one of the few vocational rehabilitation companies experienced with testing the aptitudes and abilities of Spanish and non-English speaking persons.

The interview and test battery can be administered via the internet allowing claimant’s throughout the United States to obtain this valuable expert service.

We have sat in and provided Vocational Expert Witness Testimony  in over 500 Social Security Disability hearings; we know what the Administrative law Judge needs to know to make a decision.

We can provide a Vocational Evaluation (Social & Industrial Surveys) in Veteran’s Disability cases to prove Total Disability Individual Un-employability in (TDIU) Cases.

Our Specialization is  Forensic Vocational Evaluations & Vocational Analysis.  
  • We have performed thousands of Vocational Transferable Skills Analysis through the VDARE process.
  • We also can provide Intense Brief Therapy.
  • Our mission is to provide reliable, valid, and effective vocational evaluation and expert witness services.
  • We have been providing Vocational Evaluations for over 17 years and worked with a variety of clients and disabilities.
  • We invite you to consult with us on any issue relating to employment, including earning capacity, employability, job search effectiveness, wrongful termination, discrimination, harassment, and retaliation.
  • Earning capacity consulting includes the analysis of complex earning situations including entrepreneurial income and multiple source income from part-time, project and full-time employment.
  • We also offer Vocational Rehabilitation plans, Educational Plans, &Job Placement Services.
  • A vocational expert is able to determine the individual´s skills and abilities to engage in work.

TDIU Vocational Expert and Veteran TDIU Employability Myths


TDIU Vocational Expert and Veteran TDIU Employability Myths

Getting a Evaluation from a Vocational Expert can expedite and dispell many issues in Veteran Disabilty issues.Section 4.16 of title 38, Code of Federal Regulations, authorizes the Department of Veterans Affairs to assign a total rating based on individual unemployability (TDIU rating) based upon a veteran’s temporary (i.e., non-permanent) inability to follow a substantially gainful occupation…Many Veterans believe that :

  1. Postive Rehabiltation efforts or post-rehabilitation  with  the prospect future employment, disqualifies veterans seeking individual umemployability TDIU.
  2. A Technical or college degree means veteran is employable
  3. Attending college is the same, or about the same, as having a job
  4. Working or the Ability to have a job prevents TDIU benefits
  5. If a veteran isn’t close to being commited to a psych ward, the veteran could find some employment

First.  While having an eduction does open more doors to jobs and sedentary jobs and  intelligence will allow any person a chance to do  well in a technical school or college. But scholastic  performance does not equal  employablities or high earing capacity abilities or to put in another way will have an ability to get a job offer after an interview.

The VA  Evaluator’s conclusion must be based on practical facts than on “mere theoretical ability to engage in substantial gainful employment…” Timmerman v. Weinberger, 510 F.2d 439, 442 (8th  Cir. 1975). This means the Evaluator’s “theory” of being employable in the future does not pass the legal precedent requiring VA to draw a “practical conclusion.”

Second.  Having acheived a Technical school  cerfiticat or a college degree does mean disabled veterans can in substantial gainful employement or  work in sedentary type jobs unless a service-connected disability, such as a mental condition, precludes this option. If a combination of disabilties can be shown to interfere with maintaining employment at a gainful level they can be granted disability. A Vocational Evaluation done by a Vocational Expert can document this evidence..  Citation Nr: 1009771.

Third. Attending technical school or  college is not the same as working. Many students are not going to school full time or even part time. You can study at any hour or time or in any location that is best for you. A job has a strict schedule and a strict environment. Also, schools are paid money in order for a student to receive an education or training, therefore they will do more accomidations and have more lax rules than an employer. A vocational expert can opine on this.

Fourth. Veterans can maintain employment and still be eligible for TDIU. In South Dakota, the Board of Appeals agreed. They found a veteran to be eligible for IU despite working 30 hours per week as an automotive parts salesman for 4 years. Citation Nr: 1027075. Here, the veteran had long been employed in this field, with two years of college and experience in automotive maintenance.

Even if a veteran could find work, the work must be substantial gainful employment without special accomidations and ongoing to disqualify the veteran from IU. Further, the term “unemployability” “is synonymous with an inability to secure and follow a substantially gainful occupation.” VAOPGCPREC 75-91. In this decision, the veteran had worked in the specific position for 4 years. If 4 years in that job was not considered a “substantially gainful occupation,” employment for a lesser period would fall within this classification.

Fifth. Mental Health issues can affect employability in many ways. A vocational evaluation that has psychological testing can include this in citing worker traits and vocational limitations. This would be 5 Star evidence of disability proof that is directly related to Employability.  To get better understanding of Mental Health level see Citation Nr: 1023321.

In summary, VAOPGCPREC 5-2005 . Veterans can be eligible for TDIU on a temporary basis, while in rehabilitation efforts.


Having a quality vocational evaluation done by a vocational expert can take medical and psychological limitations and show how they are directly affecting a Veteran’s employability or Individual Unemployment.

We would be happy to discuss with you our TDIU Vocational Evaluation.

Vocational Expert in Veterans Disability & TDIU Assessment

 Vocational Expert

Categories : TDIU Vocational Evaluation, Veteran Benefits, Veteran Disability, Veteran Unemployment

Neurological Disorders Veterans TDIU

Total Disability & Individual Unemployability (TDIU) – Veteran

A veteran is entitled to a 100% disability rating if he can establish that his service-connected disability[ies] preclude him from substantial gainful employment, Individual Unemployment

VA adjudicator must consider a report documenting the Veteran’s un-employability from a Vocational Expert.

TDIU Vocational Evaluation

A Social & industrial survey (Vocational Evaluation) done by a Vocational Expert can be used as valuable evidence to support a veteran’s TDIU Claim, and help get Faster Decisions.

Many times the VA uses a Social Worker to fill a basic form out, but a Social Worker isn’t an Expert in Medical & Psychological issues in disability nor are they an Expert in Vocational Issues.  This is why you need this performed by a Vocational Expert.

Forensic Vocational Experts have the clinical knowledge and expertise to bridge the gap between a person’s medical & psychological limitations and how they will affect the persons employability, so that the VA Adjudicator will be informed as to how the medical and psychological limitations affect a person’s employability.

TDIU Total Disability Individual Unemployability TDIU

Often the VA doesn’t understand how medical and psychological limitations affect a Veterans Employability or Individual Unemployability.

The VA’s ALJ’s are often making TDIU decisions based on limited information because the Veterans limitations are not addressed in Vocational Terms and so the Judges are trying to figure out how X relates to Unemployability. In order to meet TDIU Requirements, you really need a Vocational Expert to do a TDIU Evaluation.

Forensic Vocational Expert has the clinical knowledge and expertise to bridge the gap between a person’s medical & psychological limitations and how they will affect the persons employability, so that the VA Adjudicator will be informed as to how the medical and psychological limitations affect a person’s employability. This is how a person can get 100% disability due to TDIU.

Total Disability Individual Unemployability(TDIU)

A veteran is entitled to a 100% TDIU disability rating if he can establish that his service-connected disabilities preclude him from obtaining/maintaining- substantial gainful employment, Individual Unemployment

VA adjudicator must consider a report documenting the Veteran’s un-employability from a Vocational Expert.

Vocationl Expert TDIU Evaluation

SouthEast Vocational Experts: Leaders in TDIU Veterans Disability, Forensic Mental Health & Vocational Evaluations. We provide a Comprehensive Evaluation that will give the veteran Objective Medical Signs and Symptoms as required by the Code of Federal Regulations.

TDIU Vocational Evaluation

A Social & industrial survey (Special Vocational Evaluation) done by a Vocational Expert can be used as valuable evidence to support a veteran’s TDIU Claim, and help get Faster Decisions.

Many times the VA uses a Social Worker to fill a basic form out, but a Social Worker isn’t an Expert in Medical & Psychological issues in disability nor are they an Expert in Vocational Issues.  This is why you need this performed by a Vocational Expert to fully document your TDIU issues.

Vocationl Expert TDIU Evaluation

    Your Name (required)

    Your Email (required)

    Phone Number

    Must have 70% service Connection for TDIU

    Services Seeking-TDIU-Evaluations are Private pay and range from $800 to $1,500


    Total Disability Individual Unemployability(TDIU) serviced in South east as well as TDIU Evaluations nationwide.

    TDIU Requirements