Individual Unemployability

Benjamin KrauseOne veteran wrote in this week after being misinformed via an Individual Unemployability (TDIU) myth from a VA Voc Rehab counselor that TDIU veterans couldn’t use Voc Rehab wondering if the claim was true.

This claim is flatly false. Veterans with 100% TDIU (Total Disability Individual Unemployability) can and do use Voc Rehab for retraining. Now you have it, I destroyed the myth. There exists no regulation anywhere that prohibits a veteran with a TDIU rating from using Voc Rehab. I explain this below.

Does this mean you can automatically assume all TDIU veterans can use Voc Rehab? Absolutely not. And I probably don’t need to remind you why it is bad to assume… Keep reading to learn more.

 

WHAT THIS ARTICLE IS ABOUT

This article tells you how to deal with counselors who make false claims to avoid working, and is based on the troubleshooting framework in our guide, the Voc Rehab Survival Guide for Veterans.

Here is what happened. A veteran wrote in on our Facebook page, Disabled Veterans – Chapter 31 Voc Rehab, and the question got over fifty comments. Here is what the veteran wrote:

“I have been told by my Counselor that since I have PTSD and I am unemployable at a 100% I cannot go to school unless I can drop the IU rate. Also, she suggested that I cancel the claim when it was being submitted and processed. I have yet to attend school. I have been denied Vocational rehab 3 different times and each time I am being told to re-apply, to only be denied again. Very Frustrating. How do I become employable if I don’t gain more knowledge to do this? Any help would be appreciated.”

This veteran is on the VA hamster wheel where Voc Rehab counselors give conflicting information that results in churning work without creating any positive outcome for the veteran.

His counselor made this claim and followed it up with a classic lazy employee request for the veteran to withdraw the claim to help the counselor avoid additional paperwork. Can you believe that?

If you withdraw the claim, you withdraw any hope of documenting what happened in your own record. Instead, it will show that you quit rather than reflecting the fact that the counselor chose to deny you benefits.

Further, the counselor makes a request that is not reasonable; she asked the veteran to drop his TDIU claim prior to attending college and prior to finding suitable employment. Generally, it is unlikely a veteran can get a reversal of any VA decision without adequate proof. But even if he could, does it make sense for the veteran to gamble on the possibility of being retrained without any indication that the retraining will be successful?

 

DERELICTION OF DUTY

It is the job of the Voc Rehab counselor to fully evaluate the veteran and provide the training or assistance that specific veteran requires. Anything shy of that, like here, is a complete dereliction of the Voc Rehab counselor’s responsibilities.

Do you remember what Uncle Sam did to soldiers who were derelict in their duties? Why is it that some VA employees seem to get a constant pass without any accountability?

Here, the Voc Rehab counselor asks the veteran to make VA Comp & Pension make a decision without any proof that he is employable. Talk about putting the cart before the horse.

I have a hunch as to why she did this. There exists research sponsored by VA that concluded veterans with TDIU have lower chances of being rehabilitated. Since the counselor’s bonus will be more if the counselor helps rehabilitate more veterans, it makes sense that this bureaucrat would cherry pick cases. However, her job is not to cherry pick cases, but to do the best she can do with the cases that come her way. The counselor’s job is to help veterans get rehabilitated through gainful employment to the maximum extent feasible and to do that job well.

Is that what she is doing here? Or, is the counselor sandbagging her own caseload while wrongfully withholding benefits from deserving veterans?

 

HOW TO DEAL WITH A LAZY VOC REHAB COUNSELOR

Most Voc Rehab counselors work hard, but some do not. Here is how to deal with lazy employees who make up rules as they go along.

First, the counselor makes a claim. In this instance, the claim is that the veteran cannot use Voc Rehab while 100% TDIU. There is no indication in any regulation (38 CFR § 21.1 to 21.420) or in M28R guidance that such a veteran is prohibited from using Voc Rehab. In fact, the M28R mandatory guidance a Voc Rehab counselor must follow never uses “TDIU” and “Individual Unemployability” shows up only 3 times out of more than 1,400 pages.

Nowhere does M28R state these veterans cannot use the program. This makes sense as each counselor is required to evaluate each veteran, their disabilities, their employment history, and their aptitudes. It is highly plausible that a TDIU veteran could have a removable barrier to employment once retrained. Once removed, that veteran would not longer be TDIU, VA would save money and the veteran would go one to work in a new career of their liking. This is a good thing as studies show rehabilitated people who are gainfully employed pay back the cost of retraining through added tax revenue from their own earnings very quickly.

Further, it is improper to assume all veterans with a TDIU rating could not be rehabilitated – which is contrary to the claim of the counselor illustrated above. Imagine how different your own case is from any other veterans. There are a lot of variables that must be sorted through unless the Voc Rehab counselor is being negligent and ignoring their own due process and regulatory requirements.

1) Ask Questions

The veteran needs to ask, “What regulation are you relying on?” And, “Where does it say in the M28R that I cannot use Voc Rehab benefits for retraining through college?”

Once you start to probe, the Voc Rehab counselor will likely bend and reconsider your situation — this is, after all, her job.

If a counselor ever asks you to do something that sounds illogical, be sure to drill down into what the counselor is instructing you to do. In this instance, you would ask the counselor, “How does one drop their TDIU? What regulation helps me do that?” Again, the counselor will probably start to reconsider her recent “foot-in-mouth” comments since it makes no sense.

2) Demand A Written Denial

Second, tell her that you would like the denial in writing if she intends to deny you. Instruct her that you intend to file an “administrative review” request after you are afforded an opportunity to review your CER in person.

This last part is the fun part, because you are not only telling her you will not go away; you are telling her that she will need to work a lot more to deny your claim unjustly than to just do her job.

Remember, VA Voc Rehab counselors are highly paid Federal employees. Many of these counselors make around $85,000 per year plus a bonus. For that reason, you need to hold them accountable if you come across one who does not want to do her job.

3) You May Lose Your TDIU Rating

Now, if you have 100% TDIU and you successfully use VA Voc Rehab to find work, you will lose this extra-schedular rating if you earn more than the poverty level in any one year. If you do this, you will need to pay back the additional money you earn.

Does this mean you should not go for it? Heck no.

I think a life of gainful employment is better than sitting on the sidelines so long as that gainful employment does not cause you harm by conflicting with your disability. Believe me, the $1,500 difference per month in disability pay versus the financial reward of working generally outweighs any benefit from not working, if you can maintain suitable employment.

4) Not All TDIU Veterans Will Be Approved

Does this mean all TDIU veterans will be approved for retraining? Heck no.

Each Voc Rehab case is different since all veterans are different. No one case will be the same. For that reason, we need to keep in mind that there is no sure thing. Instead, put your best foot forward. If you do not like the result of a decision, appeal it by filing a Notice of Disagreement.

If you do file, be sure to read the Statement of the Case (SOC) closely and respond if there is anything in the SOC that is erroneous.

If you are denied, be sure to ask if you qualify for Voc Rehab’s Independent Living Program (ILP). Veterans on this program can receive a great deal of assistance but will not be expected to find work after the program is over.

Blake Leitch

Great article! Keep up the good work.

Lee Horowitz
Benjamin your the best I wish I knew what you do about VocRehab 35 years ago !! You are 100% correct In fact VocRehab pays for “Independent Living” for a program for persons who may not be ready for work to bring them to the point of work and training/school. The course of training in Vocrehab must be compensable with ones disability and there lies my own problem with vocrehab. I was trained as a counseling psychologist with a masters… Read more »
figure8fan
Ben and everyone else, I have seen this firsthand as I was a work-study in the Veterans’ Education Office at the college I attended. I worked there for two and a half years and the whole time I have seen, was told, contacted the VOC rehab office, and even tried to get vets into college. The sticking point in every case, the unemployability. I was told by the VOC Rehab office that VOC rehab (CH31) was for vets who were… Read more »
Lee Horowitz
Its why I never believe the VA if the aster does not sound right or sounds shalt Gt opinions out side the system from DAV or someone who knows . I worked as well in VA Vocreahb chapter 31 from my AA to my Masters degree on VA work-study in a veterans office on campus . The question I would have asked a VA Vocrrhab counselor is why then does VA Vicrehab have a “independent living ” program which is… Read more »
figure8fan
Lee, once again I did not know about the “independence living” and it was something that was then never brought up during my conversations. If I had known about that then it would have changed the whole ball game and I would have gotten more vets into college or gotten them the “independence Living” help. I accept the blame for this as I should have dug deeper into things and then I would have known. I do not like it… Read more »
J. Edward Vernon jr.

Those who sent us to WAR are the real enemies. They lied, connived and jived us into believing in their IDEALS. And now that we are in NEED, they are using the same TACTICS on us.

Antonio Sola
You’re so right. Chasing the legendary insurgent up the rocks of Cochibamba, Bolivia, or crossing the Niagara with a bike is easer that fighting VA. As trained killers, the have the nerve of telling us that as killers we could get a well paid job with Don Corleone or Pablo Escobar. But the VA Fleet, after the Phoenix affair, is mopping up the murder rats. Imagine, people at the bridge who didn’t qualify even to mop the deck. Thank you… Read more »
namnibor
Great, well-written and informative article, Ben! PLEASE TELL ME WHY…each and every VAHC and Office is NOT STANDARDIZED across this great nation?!!! Seriously!! Even more importantly, even IF it’s *supposed* to be standardized across the entire VA System, why is there obviously NO accountability in even getting the BIG GUN Secretary of the VA to ENSURE standardization of ALL REGULATIONS across ALL VA’s, no matter where they are in the USA and territories? Seems I need to say this YET… Read more »
spiritualmessenger
This article in principle of deniability I can identify with my voc rehab counselor Carlene Burke at the 245 West Houston St. Regional V.A. office. I have about 8 -10 months left on my 48 month training benefits. I brought in the proper medical, psychological, and Government Congressional documents on extension of benefits. She and her boss refused to achknowledge and read the V.A regulations. When I insisted that I was eligible they suspended me for the last 6 months.… Read more »
bruce wallace
ben, i think you may need to add a chapter or a new booklet about voc rehab for social readjustment only. i went through this several years ago and it had nothing to do with going back to work since everyone up front at the va knew i was incapable of that. my case is a bad example in a main respect because my voc rehab was a complete disaster with me nearly being shot by campus police where i… Read more »
Lee Horowitz
Hi Bruce I was the Director of a center form independent living for persons with disabilities , many with severe disabilities. We had independent living training programs Look into these centers for independent living for person with disabilities .The staff is mainly also persons with disabilities who have been what you have been going through CIL- Center for Independent Living – federal program for persons with disabilities , also they do advocacy work, attendant care/homemaker services, disability counseling, etc Good… Read more »
Liz Hardy

If you are a 100% service connected Disabled Veteran can you still use Voc Rehab? A few years ago I was told no I can’t use Voc Rehabis this true ?

figure8fan
Liz, to the best of my knowledge you should be able to use it. Even if you are 100% disabled it should not matter. As it states in the article above, most of the counselors are just too lazy or do not want to do the paperwork to get you what you deserve. Try again and if you are denied, have them put it on paper as to why (a signature also helps) and the rule as to why you… Read more »
Robert Collins
Great and motivating article Ben. Why is it so hard to get the right answers from the VA and the Service Org VSOs? They all seem to parrot wrong and misleading answers in their bureaucracy and then you have non-veterans and Congress doing everything they can to privatize the VA and do what they do to the military by charging a lot for a intangible service and then delivering little or nothing as if they are the VA and they… Read more »
Papa Reed

Unbelievable. That VA would be so bad as to do this.

Susan Easter

Fire Ralph Gigiotti
Visn Director Director Denver. Ralph and his
Visn staff are incompetent
and he hates Veterans.

stanman47
The purpose for CH31 is to “restore employability” so the people who could or should be the best candidates are those of us receiving IU. But, rarely does some on IU really want to return to the workforce. In more than 20 years as a DAV NSO I recall 2 veterans who relinquished their IU and went back to work. Most vets on IU have a work history apart from active military service and are awarded the total rating based… Read more »
Lisa Maples

Veteran jobs with VA for Vets http://jobs.vaforvets.com

terry

I am 100% unemployable veteran I am college can I work so many hours without hurting my disability benefits. I have PTSD and have my ups and down and I don’t want to start over again

Kusama Rachel

I would suggest focusing on college first because adding in a job may trigger a mountain of anxiety or depression causing a total shutdown. Thats the thing with PTSD, you will be feeling awesome and then BLAM. So just enjoy, take it easy, focus on classes – if you are going to add anything…add an art class or a yoga class.

Randy Wilson

I know a girl that has 100% disability and she’s unemployable. She just got a job. making 12 to 15 thousand a year. Something simple, Not hard at all. Can she lose the unemployability. So that no one can come back at her because she’s working? Or does she earn to much? Or is it the best idea to tell her to quit the job…. and tell her to volunteer to help others…and call it a day.

Jon
what is true? failing in Voc rehab college course, even with a tutor. I am 70% disabled and asked for a letter for my IU claim in regards to a clinical VA social worker indicating i can’t work. My counselor originally said they would discharge me with a letter in support that i could not longer continue due to medical reasons and now.. her supervisor says that they can not write a letter about unemployability from a Voc Rehab discharge..… Read more »
GINo
I am 80%SC bumped to 100%IU. I am 3/4 through my B.S. in Psychology degree with Voc Rehab. I have been going under reduced workload tolerance for the last 4 years. I go 4 credits in summer and between 7-9 in Spring and Fall. It’s all I can handle mentally. I just recently had my doctor fill out the Reduced Workload Tolerance letter and he approved it to exactly what I said above. I got a new case manager and… Read more »
Nick Savage
I have a question I hope someone can help me with. I have passed the first stage with the letter stating… You have been found entitled to Chapter 31 VRE services. Your entitlement is based on your need for program assistance because (see item marked): Then it says I have both an employment handicap and a serious employment handicap. I was also found reasonably feasible for the achievement of a vocational goal. Now the question, Can I not only get… Read more »
Kusama Rachel
vocational Rehabilitation counselors also have licenses so you should also directly complain to their licensing boards (CRC usually) in each state. You can browse their code of ethics for more specific information.report them to their board so that they can be replaced by counselors that DO care. As a grad student mental health therapist and the wife of a disabled vet, complaints to the board are the best avenue. Some complaints you can file online (M.D.s) other you have to… Read more »
Z
Ben, There are no words to thank you for posting this. I am about to fight this battle myself, just in an odd order. I am currently 90% rated from the VA and going through Voc Rehab for a BS in Mechatronics Engineering. I stopped by the office adjacent to the Voc Rehab today to try to figure out how I am supposed to get treatment and medication ( I have only been out of the service for a few… Read more »
Dan Steadman

l am 100% unemployable wrongly filled out the voc rehab app and just want to cancel out the app can I do so without a problem.

Kevin

I am 100% Indivual Unemployment and was wondering if I would still qualify for VA Vocational Rehab if over my 12 year expire date from disability rating?
Was in the program 2 years ago, but quit because they wouldn’t let me attend flight school at a private school. Like to give it another try. Thanks.

Dave Haycock
I am 100% P&T for chronic PTSD, attend all appointments with VA Mental health psychologist ,social worker & psychiatrist. I also am rated for heart,agent orange,diabetes,ED, etc. I would like to take a Master gunsmiths correspondence course. My DAV service rep told me the best way to get the VA to approve payments to the school (they are vA certified) is to have VA psychiatrist write a letter stating that in his medical opinion I would benefit from this course… Read more »
Tim

Ben I am applying for IU, and I have multiple things that are service connected. I have seen at least 4 Doctors on my back. Can I attach a letter to the va form 21-8940 ?

Jessie

Ben, Can a veteran apply for TDIU while he or she is enrolled into vocational rehab? Will this affect the outcome of the veteran’s claim?

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