One 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.
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Benjamin Krause is an award winning investigative journalist, attorney, and disabled veteran of the US Air Force, where he served in its Special Operations Command. He wrote his guide, the Voc Rehab Survival Guide for Veterans, after winning his long fight for benefits against VA to help other veterans do the same. Benjamin is a graduate of Northwestern University and the University of Minnesota Law School using VA Vocational Rehabilitation.
