President Trump is faced with a conundrum firmly ensconced in an enigma. This one is worse than Br’er Bear and Br’er Fox’ tar baby. To put it in its simplest terms, what do you do with a VA schedule for rating disabilities (VASRD) that contains a chutes and ladders clause? Introducing Total Disability due to Individual Unemployment (TDIU) is typical, vintage VA. Give it some arcane name virtually disconnected from what it implies to begin with. That fakes out a vast majority of VSOs right off the bat. The VA then made it an extraschedular rating that has to be shipped off to DC for the Director of Compensation and Pension to take a swing at it. Finally, having qualified, the disabled Veteran has to eschew any jobs, no matter how mundane and financially fruitless, to keep this rating for life. You’re walking a tightrope for 20 years in order to attain a pseudo-protected rating.
But that’s not all. In order to keep TDIU, you have to submit a financial disclosure form annually to confirm your continued eligibility – even if you are granted your permanent and total rating. I’d say there’s a major truth in advertising flaw here that doesn’t pass the smell test. Welcome to the VA version of enforced unemployability.
The conundrum we Veterans face is the VASRD. Let’s take a back injury. You jump out of perfectly good airplanes that are still capable of flight with a flimsy piece of silk to cushion your landing. It looks good on paper. Shaved Mohawk haircuts and warpaint aside, when you strap on another 90 pounds of gear and a rifle, your landing is going to be magnified by the gravitational pull of those extra pounds. Skydiving as a sport is not even in the same league. So, you land again and again and after 25 jumps you get your wings. Newsflash. The damage is done. Adding another hundred or two jumps, some into a combat arena or sylvan setting can add to the structural damage tenfold. And remember, we have not even discussed the rest of the supporting musculoskeletal architecture such as the hips, knees and ankles.
Eventually, you retire and file for these injuries. Surprise, surprise surprise, Sergeant. The VASRD doesn’t have a rating above 60% for your now DDD’d L5-S1 juncture. Both legs are hors d’combat as well but the max you can squeeze out of them is 40% each. You begin searching for pain on excursion and discover you are similarly limited by how much you can attain for these DeLuca ratings. The sum total ends up being about 80%, possibly 90. You do the math and turn to the combined ratings table in 38 CFR §4.25. Ruh-oh, Rorge. No help there. With an 80% rating, it will take another 80% rating or a combination of disabilities combined to 80% to attain a combined 100%. You haven’t even touched the P&T merrygoround yet. Welcome to VA math.
Now we examine the TDIU system’s rationale. At present, looking at the current statistics from 2014 on just 100% schedular (one single rating for 100%) versus TDIU, I see 439,459 Vets with a 100% schedular rating (or more). TDIU recipients are listed as 326,687 souls. Since there seems to be a bump clause-i.e. somebody has to die for another Vet to “graduate” up to TDIU or a 100% schedular -the numbers remain static. That is, over the last twenty or so years, the numbers have remained relatively the same. VA has X dollars for this game so it makes sense. Yes, I know they keep raising the VA’s budget but high quality employees talented at counting beans are a commodity in short supply if you listen to the AFGE. Thus, bonuses and other inducements like Human Resource getaways to Tahiti for “All-hands-on-deck” meetings and conferences are in order annually. Firing the miscreants isn’t an option. VA needs every one of them and, if you listen to the poohbahs, they need exponentially more in spite of the decreasing numbers of Veterans. Aruuu????
So… how do you give this behemoth a haircut without upsetting the applecart? President Trump and (Don’t call me- call the White House) Dave Shulkin are now studying this TDIU enigma and trying to discern a way to trim it (and VA) back. Again, the VASRD is the impediment to realistic ratings such as that described above for Johnny Airborne Vet. If you are totally disabled, why not just call in the dogs and piss on the fire? Why this pseudo-disability dance and Torquemada tribunal to diagnose the inevitable? Well, ladies and gentlemen Veterans, there is more at play here. Some Vets are truly disabled above and beyond even 100%. Some, like me, are still walking and have 290% in ratings. I even have two 100% schedulars protected by 20 years no less. I can still walk-albeit like a drunken sailor- but I haven’t lost my ability to ambulate. By rights, carrying that pile of disabilities should make me totally disabled . But here’s the dichotomy. Much like the Energizer Bunny, I just keep going. Some of us have a mental granny gear and 4WD that is immune to the concept of unemployability.
Since I have become an accredited VA advocate, I have met a lot of interesting, disabled Veterans. Some, but not all, insist they are totally disabled by virtue of their personal subset of disabilities. You can see where I’m heading. Not all Veterans are as motivated to stay employed or are seeking the TDIU golden apple by virtue of what they personally perceive as “total” disability. VA, through the inept application and failure to revise the VASRD over the intervening decades since 1945, has created a financial Frankenstein that continues to metastasize in numbers and applications never foreseen. You can attribute our NOVA attorneys’ good works and the CAVC for the expansion of IU or you can blame it on the inane propensity of our Government to endlessly wander the earth in search of places to try out brand new military technology.
Regardless the cause of these new, exponentially increasing numbers of disabled Veterans, their numbers and their cost are becoming problematic. What is proposed (dinking you at 62 and putting SSA in place of IU) is not as dismal as it sounds. Well, actually it is but the predicate for their rationale is impeccable. I can hear the incoming already. Think it through, folks. What was the predicate for the IU in the first place? You described yourself as “totally disabled “- totally. The program you applied for is predicated on “employability”. What do able-bodied American citizens who have never been Veterans do between the ages of 62-67 these days? Yep. They retire and are no longer employed. They have earned their promised pittance mismanaged by the SSA and Congress. It remunerates them for- hold on to your hats- retirement from employment. Most Americans do not get concurrent receipt of pensions and SSA and all the extra golden parachutes available to them. They look to 401 Ks. Some yes. Some no. The hue and cry thus is a plaint for concurrent receipt by Veterans of compounded earnings from post-Veteran wages as well as a total unemployment check-for life.
Truth in advertising is what is at fault here. VA should never have couched IU as an employment issue. It is a disability assessment- in this case 100% or its equivalent. Add up 50% for PTSD, 40% for DM 2 from Agent Orange, throw in several low percentages for hemorrhoids, tinnitus and pes planus and voilà- TDIU. But ask yourself- am I “totally” disabled? Do I meet the high bar of being unable to obtain (or create) employment? I’ve even heard the inane argument ” I could go back to work but then I’d lose my TDIU. I need the money though.”
This is where I part company with many of you. Remuneration for disabilities must be commensurate with the number and degree. Simply having a combined rating of 70% with one anchor rating of 40% is considered viable for TDIU. Similarly, one single disability of 60% qualifies you to stay in the IU poker game. It’s a lot like Jacks or better to open. But ask yourself this burning question. Am I “totally” disabled? Am I incapable of ever learning a new tradecraft or seeking educational opportunities that will lift me out of the “total” disability morass? I look at myself as the sum of my parts. If my back goes south, it doesn’t screw up my brain unless I keep eating Dilaudid like candy. Hey. If I’m your Agent- relax. I gave up pain meds for Lent (back in 2011).
The arguments put forth by all the major VSOs are heartrending. Vets are going to be homeless. They’ll be eating out of dumpsters. Vets have come to depend on 100% TDIU funds because, well, because frankly, they like the money. Duh? Let’s examine this another way. You are 23 and the economy crashes. You file for unemployment and get $250 bucks a week and crash on your parents’ sofa. You do this for 99 weeks and then they kick you off. Congress passes a bill continuing the benefit and you get another 52 weeks of chump change. Finally, the economy improves and jobs become fashionable again but you have now taken a hankering to Drew Carrey and enjoy the The Price is Right every morning with your parent’s free Frosted Flakes. You’re loath to go back to work because you like this new unemployed lifestyle. The government takes a dim view of this and cuts you off. Back to work, José. Eventually you get a beer belly and gray hair. At some point between 62 and 67, you retire and step into your meagre SSI check. You’re now totally and individually unemployed but you have your SSI check that is designed to reimburse you for this turn of events. Or… you can choose to continue being employed. There’s no law preventing you from working until you hit room temperature. Medically, you may not be up to framing houses or long-haul trucking but you are still capable of some form of gainful employment. I studied long and hard while helping Vets over the last 20 years and sat for the VA test to help other Vets legally. It may not be the most lucrative endeavour but it is employment-at 66 no less.
Helen Keller TDIU?
The teaching moment I set out to illuminate is simple. Your concept of being “unemployable” is a fig newton of your imagination. Granted, there are a vast number of Veterans with disabilities, both mental and physical, who are no longer qualified to work gainfully. Some wave the flag of stupidity-i.e. they claim they are akin to an old dog and incapable of learning new tricks. Hogwash. I had envisioned myself in my old age constructing kids’ toy guns out of wood scraps and selling them at Farmer’s markets. I made them for all the neighborhood kids when I was in my 40s. They were a big hit then and would still be so now. Political correctness vis-a-vis guns aside, there are thousands of make-work projects that await those with some imagination. Disability is a mental construct. Think of Helen Keller as an extreme example. She even managed to write a book.
Any argument in favor of keeping TDIU past 62 is going to require redesignating IU with a different moniker and increasing the admission requirements. I say this not from the viewpoint of being anti- Vet or anti-entitlement. I say it not from the standpoint of smugness-that my disabilities entitle me to far more than a Vet with a 70% rating for PTSD. My argument merely provokes the matter of proper, descriptive English and semantics. If you call it an entitlement due to unemployability, then by rights it must end when you choose to exit the field of employability- ostensibly when your entitlement to SSA begins in your golden years. Why is that such an insurmountable mental concept?
Money is fun. More money is even more fun. Getting the highest and best rating is what we all seek. The VA poker game is set up to make it nigh on impossible to use VA compensation as welfare. The price of admission, besides being a disabled Veteran, is steep. No one disputes that. Look at the VASRD and notice the Special Monthly Compensation (SMC) rates that go far beyond the $3,078.00 for 100% ratings. A severely disabled single Vet on R(2) is entitled to $8,348.00 per month. Veterans from the post-2001 era with TBI attempt to get this rating and are disappointed to learn they can rarely get it indefinitely. VA compensation is not perfect. It was designed by a sadistic soul with limited financial assets to supervise and award to needy Vets. VA is crashing their own system due to their munificence. I’m sure they don’t want to but wars create collateral damage, missing limbs and bent brains. This isn’t a chicken or the egg came first enigma. The cause and effect are predictable. VA’s problem is the inability, due to a stingy Congress, to remunerate us for our injuries.
I admire President Trump’s desire to tune up the VA disability engine and search for disparities in outcomes. I welcome Dr. Shulkin with a lukewarm endorsement if he really fixes VA. So many VASECs have come before with wild promises to “repair” it and promptly do a faceplant. TDIU as we know it is doomed- if not for its misnomer in the first instance. I don’t relish this. I don’t approve of it but I do see it as inevitable simply because it was designed as a temporary panacea that became an entrenched idea to remunerate Veterans far past the point of viable employability. Who can look me in the face and say “Well, I’m sure entitled to IU because I’ve had it since I ate the B-40 in ’68 at Qui Nhon. I’m 72 and I can’t live without it.” The truth is not that you can’t live without it. The truth is that you have been lulled into thinking you are 100% disabled. In fact, you at one point or another, filed a VAF 21-8940 declaring yourself unemployable in 68. No one in their right mind can ideologically cling to the idea that they are still entitled to an unemployment check at 72. If you want to use that logic engine, then you would have to agree to relinquish your Social Security because you’re still collecting the unemployment benefit (IU).
I always like to take the Devil’s Advocate’s stance and analyze all the possible permutations of an argument solely for argument’s sake. Some fervently wish I”d keep my pie hole shut and not let Pandora out. This a viable national argument. Words have meaning and this is one of those times where emotions have to take a back seat to the poor choice of Congressional semantics. Either change the name and/or the rules for this entitlement or do away with it entirely and begin anew. There are legitimate cases for TDIU and there are those who would game the system to attain an IU rating when they could still find or even invent a new job for themselves that encompasses their subset of disabilities. No one can tell me I am an anomaly or an outlier. I don’t buy it. I’ve been a construction worker, a lifeguard, a telephone installer/repairman, an interpreter, an electrician, a builder and now a psuedo-law dog. Each new iteration was born of financial necessity. I attribute my last and most recent avocational calling as a finger in VA’s eye.
And that’s all I’m going to say about that.