For veterans who cannot work due to their service-connected conditions, there are essentially two methods of receiving a 100 percent rating. They can either be granted what is known as a “schedular” 100 percent rating based on their symptoms alone or, if they have not received a 100 percent rating, they can apply for a Total Disability Rating Based on Individual Unemployability, or “TDIU.” A TDIU  is a benefit where a veteran is paid disability compensation at the 100 percent level, even if his or her service-connected conditions have not been assigned ratings that reach that level. It is given to veterans who, due to their service-connected disabilities, are unable to get and hold a job that pays them a “substantially gainful” income. Getting a TDIU is much more difficult than it might sound.

For many years, the Veterans Court and veterans’ representatives were frustrated by the VA’s refusal to tell us what exactly “substantially gainful” meant. In the first few years of its existence, the Veterans Court complained  of the lack of clarity and called upon  the VA to better explain its rules regarding a TDIU. The VA never listened to the Veterans Court’s requests and finally, about a decade later, the Court decided to define “substantially gainful” on its own. The Veterans Court decided  that a “substantially gainful” job was “one that provides annual income that exceeds the poverty threshold for one person.” As a result of the Veterans Court’s decision, you cannot be granted a TDIU if you are able to earn more than $11,770  each year. This is, quite frankly, a horrible injustice.

There are a number of glaring issues I discern with using the poverty threshold as a metric to determine whether a veteran is capable of substantially gainful employment. First, from a policy perspective it would be downright depressing for a veteran earning slightly more than a poverty wage to be considered gainfully employed. The poverty threshold is meant to indicate whether a person is unable to support himself, not whether he is living the comfortable life that veterans surely deserve. Second, relying on the poverty threshold for a single person fails to account for veterans with families. Indeed, it is inconsistent with VA’s policy  of paying more compensation to married veterans with children to say that a veteran with a wife and two children is capable of supporting his family when he earns a mere $11,770 a year. Furthermore, the federal poverty threshold does not account for regional differences in the cost of living. We can all agree that it costs more to live and eat in New York City than it does to do the same in rural Oklahoma, yet a veteran living in a major city is considered to be earning a “substantially gainful” living if he earns the same amount as a veteran in rural America.

What is most striking about relying on the poverty threshold, however, is that VA compensation payments are supposed to be based upon  the “average impairments of earning capacity,” which for an unemployable veteran amounts to approximately $35,000 in tax free benefits per year. This means that VA considers a livable wage for an unemployable veteran to be equivalent to approximately $50,000 before taxes, but considers a livable wage for an employed veteran to be only $11,770. It seems incongruous to say someone has a “substantially gainful” job if they make $11,771 each year, but to pay a tax free $35,000 per year to a veteran who is not capable of “substantially gainful” work.

It is a sad reality that many veterans are unable to earn a decent living due to disabilities that they sustained in service to our country. This sad reality is worsened by the VA’s decision to say that a veteran who earns a penny more than the poverty threshold earns a “substantially gainful” living. This policy leaves many veterans in dire financial situations which is an unfitting reward for their service to the United States.

The Government Accountability Office issued a report  earlier this summer summarizing its investigation into how the VA handles claims for a “Total Disability Rating Based on Individual Unemployability,” also known as a “TDIU.” In short, a TDIU  is a benefit under which a veteran is paid disability compensation at the 100 percent level, even if his or her service-connected conditions have not been assigned ratings that reach that level. It is given to veterans who, due to their service-connected disabilities, are unable to get and hold a job.

It is not often that we are allowed to peer behind the curtain of what goes on within the VA offices where decisions are made on veterans’ claims, and this report offers some alarming information. In reviewing the report, I was struck by something rather startling: many of the people who are supposed to decide your claims do not know what they are doing. This might sound harsh, and you will probably think that I’m biased because I fight the VA for a living. But before you stop reading, please hear me out.

According to the report, VA employees in five of the eleven groups that were interviewed disagreed on what information they were allowed to consider in deciding a TDIU claim, specifically disagreeing on whether they could consider “age, education, work history, and enrollment in training programs” in making their decisions. What is troubling about this is that various laws and court cases are crystal clear on these points. For instance, while VA employees apparently disagreed on whether they are allowed to consider a veteran’s education and work history, VA’s own rules  mandate consideration of “employment history” and “educational and vocational attainment.” Similarly, while VA employees could not agree whether they were allowed to consider a veteran’s age in deciding a TDIU case, VA has a rule  which specifically states that “age may not be considered as a factor in evaluating… unemployability.” Shockingly, at least some VA decision-makers were blissfully unaware of their own agency’s rules.

The report also discussed a VA decision-maker who was unsure how to handle a specific TDIU case. The report indicates that a veteran was seeking a TDIU based on blindness and suffered from a service-connected condition of the eyes in addition to age-related vision impairments. According to the report, “the rating specialist noted… [that she] had difficulty separating the effect of the service-connected disability from the non-service-connected [age-related eye disorders].” Once again, this VA employee’s issue seems to be a lack of training on what the law says. Over twenty years ago, in a case called Fluharty v. Derwinski, the U.S. Court of Appeals for Veterans Claims stated that the VA “may be unable to determine whether [veteran]’s unemployability is caused by his non-service-connected disabilities or by his service-connected disabilities,” and held that, “if that is the case, then the evidence may be so evenly balanced that the ‘benefit of the doubt’ doctrine found in 38 U.S.C. § 5107(b)  may apply.” In other words, the court told VA over twenty years ago how to handle this case, but apparently some VA employees still have not gotten the message.

The glimpse into the world of VA gives us two examples of VA employees who simply do not understand the rules which they must follow. I do not know why these decision-makers cannot understand the law, but I am certain that their failure to understand and follow the law has led to some veterans being denied the benefits that they deserve. This lack of understanding is, without a question, not limited to TDIU claims and likely extends to other VA benefits. The failure to train VA employees on what the law says and how to follow it is one of the many reasons that the VA is broken.