Don’t Let the VA Employees be the only one to decide a Veteran’s 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 unemployability, 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 had training, education, or experience in vocational issues, vocational limitations, nor medical and psychological aspects of disability.
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. 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).
“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 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.