Updated: Jan 24, 2019
Are you at Retirement age 65 and 67 or older? Do you have a combined disability rating between 60 and 90%?
Many veterans who have answered yes to these questions have sought increased ratings in an effort to attain that 100 percent rating. Even more so, these veterans have consulted with local VA personnel on a claim for Entitlement to Individual Unemployability (IU). These same veterans have been turned away by the VA. The VA’s reasoning, the veteran has attained retirement age and therefore IU is not available to them.
This is a very common misconception and another tool the VA is using to deter the veteran from filing. A veteran can apply for IU at any time as long as they meet the criterion under 38 C.F.R §4.16. This regulation requires
A veteran who has claimed one disability to be rated at 60% or more on that one
Not be able to work due to the service connected disability
A veteran who has claimed two or more disabilities must have a combined rating of 70% or more AND
One of the those disabilities within that 70% be rated on its own at 40% or more, AND
Not be able to work due to the service connected disabilities.
Of course like with all things there are exceptions to this. For example, if you don’t quite meet the rating criterion you may still file for IU. Reason being, the VA has to also consider an IU application as a claim for an increase on other rated disabilities. Rice vs Shinseki ruled that a claim for “IU is not separate and apart from an increased rating claim… Instead,… a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability.”
Similarly, the VA must also consider common etiology. But the point is even if you are retirement age 65-67 or older, or even if you filed for early retirement, you may still be entitled to Individual Unemployability.
It is not required that you show you stopped working due to your disabilities but rather that you cannot work or return to work due to your service connected disabilities. You could very well be entitled to 100% compensation and it is important to contact an attorney who can explain IU and the many exceptions. Please don’t let the VA keep your IU compensation just because you are retired. Contact us today. You have earned both!