If you qualify for total disability based on individual unemployability (TDIU) because you can’t work, the VA may owe you thousands of dollars in back pay. This post explains why.
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After months or even years of appeals, the VA has finally agreed that you can’t work because of service-related disabilities and awarded you total disability based on individual unemployability (TDIU). But what about all of the payments you missed during the process? The VA may owe you that back pay to your effective date. Here’s what that means and how to get what you’re owed.
In this article about back pay and TDIU:
TDIU is granted when you can’t work because of a service-connected condition or a combination of service-connected conditions.
An award of TDIU pays the same monthly compensation as a 100% rating for your disorder(s) without requiring your service-connected disabilities to add up to 100%. You can apply for TDIU if you can’t work because of a service-connected mental or physical medical condition or a combination of multiple service-connected conditions and their side effects.
TDIU isn’t always permanent, and a veteran may no longer be eligible for TDIU if they begin working.
What is back pay?
Back pay is the money you should have received while waiting for the VA to approve your claim. Veterans receive this payment in a lump-sum check.
Factors that affect back pay amount include:
- The veteran’s disability rating
- The effective date of the veteran’s claim
- How many dependents the veteran has
- Whether the veteran is married and whether their partner also receives assistance
- How much the VA paid the veteran while a decision was being appealed
Use our VA disability back pay calculator to know more about what to expect from back payment.
The problem comes when veterans aren’t appropriately paid their back pay. Too often, veterans only receive their VA unemployability back pay to the date they appealed or some other date, which are incorrect effective dates. That’s why it’s vital to understand when your payment should have started.
How effective dates affect VA unemployability back pay
Unemployability back pay should go back to your effective date. Your effective date is typically when you originally filed a claim for disability benefits. It also can be the latest of either the date you filed a claim or the date a service-connected injury or eligibility otherwise arose, whichever one is later.
The date entitlement arose can be a confusing and nuanced measure because it considers when the disability first manifested. So, for example, if you filed a claim for headaches in January 2022 but didn’t start having symptoms of a headache until June 2022. You can’t be awarded benefits before June 2022, when you first had the disability and started having the symptoms.
The existence of symptoms, not just the diagnosis, indicates the disability, according to the law.
Another factor is the date law or regulation authorized entitlement to benefits. You can’t be granted benefits before the date that the law recognizes the disability.
The VA often gets effective dates wrong, and many veterans don’t know they should have an earlier effective date. This mistake can cost veterans thousands of dollars. So, being certain about your effective date is vital. You’ll probably want to appeal if you think the VA has the wrong date.
What is inferred IU?
An inferred IU claim occurs when you don’t claim individual unemployability, but the evidence you submit makes the VA infer that it is the case. The concept of inferred IU came out of the precedent-setting court case Rice v. Shinseki.
“Rice v. Shinseki says that when the records in the file raise the issue of unemployability – somewhere along the way, a doctor has said that this condition is impacting their ability to work — that raises IU, and the VA is supposed to adjudicate it,” VA-certified disability benefits attorney Lori Underwood said.
The VA often doesn’t make the right decision in these cases, Underwood said. And their failure to do so means veterans aren’t awarded years of back pay that they should receive.
For example, let’s say a veteran has a 60% disability back injury. They also have tinnitus, and it’s difficult to hear when they talk on the phone. It impacts their ability to work, and their record shows that. Then, it raises IU. If the tinnitus is on appeal, the VA should consider it in the totality of limitations, Underwood said.
“The VA should evaluate all that and adjudicate that. And usually, they don’t until you have somebody raise it in an argument, which is the benefit of having an advocate. They understand those types of rules and can make those arguments and make sure that those benefits reach back to the earliest effective date that they could,” she said.
“Many veterans will file the IU application and might get an IU award right away. But they don’t realize they might have had five years of back pay from an inferred claim still open when they filed the application.”
Filing Form 21-8940 can lead to effective date issues
Form 21-8940 is the form you complete with the VA to apply for TDIU benefits. Sometimes this form can lead to issues with your effective date because the VA will attempt to use the date you filed the form or when you filed it most recently as the effective date. But as you see in the explanation above, this is an inaccurate effective date because it’s not when the disability symptoms began or entitlement arose.
If the VA attempts to use this inaccurate date, you’ll need to appeal that decision to get the appropriate back pay.
“The firm got me to 70%, and I was happy. Individual unemployability was awarded to me and to this day I’m so grateful. My future is no longer bleak. These people work very hard for you.“
R.C., a Navy veteran in HawaiiFacebook review
Our VA disability lawyers can help you get the unemployability back pay you deserve
So, what do you do when the VA makes a mistake? The VA disability lawyers at Woods and Woods have filed appeals for thousands of veterans who are missing back pay from the VA. You can get your missing back pay – even if you don’t discover it until years later. Unfortunately, missing back pay is more common than you think. Give Woods and Woods a call and learn about your eligibility. We will have you tell us about your mental and physical disabilities and your work history. Legal consultations are free and confidential. You only pay us if we win your case.
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FREQUENTLY ASKED QUESTIONS
The VA will send you the back pay owed to you, but you must make sure they have the correct effective date, or you will need to appeal to receive the correct amount of back pay.
The VA uses the date a veteran filed for benefits and the claim approval date to determine back pay, among other factors. Use the Woods and Woods back pay calculator to know more about what to expect.