Did you know there are 5 Paths to a VA Total Disability Rating? Do you know which one is right for you? Do you know how to fix an administrative denial of a VA Total Disability Rating Claim?

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5 things you Didn’t Know about Total VA Disability Ratings.
The phrases "100% disabled" or "Total VA Disability
Ratings" get thrown around a lot in Veterans disability
benefits claims.
Problem is, that phrase doesn't always mean the same
thing to everyone. In fact it can mean several different
things in at least 5 different types of service connection
claims.
Let's see if we can clear some of the confusion up.
5 things many Veterans don't know about
Total VA Disability Ratings.
1) There are MANY paths to a 100% rating.
The idea of a Total VA Disability Rating starts from the same point:
Total (100%) disability ratings will be assigned "when there is present any impairment of mind or body which is
sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §
3.340(a) (2013).
There are 5 ways to get there, though:
* Total Disability Based on 100% Schedular Rating. When the Veteran's service-connected condition meets the 100%
impairment rating requirements found in Table 4 of 38 CFR , they receive a 100% schedular rating).
* Total Disability Based on Schedular TDIU (When a Veteran has one service connected condition at 60%, or a total
rating of 70% with one being at least 40%, the Veteran can request a 100% schedular TDIU rating).
* Total Disability Based on Extra-Schedular TDIU. (When a Veteran is service connected for one or more conditions,
but is not able to secure substantial gainful employment, he/she can seek an extra-schedular TDIU rating of 100%
even if their ratings don't reach the schedular TDIU requirements above).
* Total Disability Based on an Extra Schedular Rating (if the VA schedule of ratings does not adequately compensate
a Veteran's service connected disability, they can seek a 100% extraschedular rating. This is NOT the same as
extra-schedular TDIU)
* Temporary Total Disability based on hospitalization (generally speaking, this is awarded when a Veteran is
hospitalized for a service-connected condition and for the 6 months following that hospitalization).
2) A Claim for Increase is also a claim for TDIU when there is evidence of unemployability.
In the Rice v. Shinseki case (22 Vet. App. 447, 454-55 (2009)), the Federal Circuit held that a Veteran's request for a

2. higher disability rating, coupled with evidence indicating that the Veteran's ability to work was "significantly impaired"
by his or her service connected conditions reasonably raises the
issue of entitlement to TDIU as an alternative basis for increased
compensation.
This type of claim is an inferred claim and should be considered
by the VA Regional Office whether the Veteran specifically asks
for it or not.
What does that mean in practical terms? Depends on where you
are in your case.
When FILING a claim for increase, if you are
unemployable because of the service-connected condition -
regardless of the percentage, include VA Form 21-8940 and
specify that you are seeking TDIU in addition to the claim for
increase for that condition (include all service-connected
conditions that impact your ability to get employment).
Veterans Court cases teach us HOW to win our Claims.
When arguing that the VA wrongly denied a claim , look in your C-File
Here's 10 cases every Veteran should know.
for claims for increase where you also alleged you
are unemployable or unable to get employment because of that condition, and then you could argue that the TDIU
claim is reasonably raised by the record.
We are arguing the opposite in a case currently before the Board of Veterans Appeals - that a claim for TDIU, being a
claim for increase, necessitates that the Board adjudicate the increased compensation claim as well as the TDIU
claim.
3) Extraschedular TDIU is NOT an Extra schedular Rating.
Adding MORE confusion to the mix, there are 2 totally different types
of "Extra Schedular" ratings.
The first is a 38 CFR 3.321(b) Extra Schedular Rating. This is
available "in exceptional cases where the [normal schedule of ratings]
is inadequate." Thun v. Peake, 22 Vet.App. 111, 114 (2008), aff'd sub
nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
To determine whether a 3.321(b) extraschedular rating is warranted,
the Board must determine that the schedular evaluation under which
the Veteran is rated does not contemplate the [Veteran's] level of
disability and symptomatology, and that the Veteran has an
"exceptional disability picture exhibited by factors such as 'marked
interference with employment' and 'frequent periods of
hospitalization.' "
The second type of extra-schedular rating is "Extra Schedular TDIU".
Extra-schedular TDIU is governed by 38 CFR 4.16(b) - and is totally
separate from the consideration of an extra-schedular rating under
3.321(b). See Kellar, 6 Vet.App. at 162; Stanton v. Brown, 5 Vet.App. 563, 564-70 (1993) (issue of extraschedular
evaluation is separate from issue of TDIU rating)

3. A key difference - but not the only difference - is that Extra Schedular TDIU requires evidence that a Veteran is
unemployable, but does NOT require proof that the Veteran is inadequately compensated by the normal schedule of
ratings. a 3.321(b) extra schedular rating has nothing to do with unemployability - you merely need to prove that the
normal Schedule of Ratings does not adequately compensate you for your service-connected disability.
4) The VA will deny your claim for TDIU - administratively - if you don’t file the 21-8940.
I see this happen SO much. Veteran claims unemployability or TDIU, and the VA actually catches the inferred claim.
They send a letter saying - essentially - send us a copy of VA Form 21-8940. The Vet never sends it in.
The VA has an internal policy of an administrative denial of a request for TDIU if the Veteran fails to send in VA Form
21-8940. And they usually don't give a second warning.
If your request for TDIU was "administratively denied", what can you do?
Send in the VA Form 21-8940 within a year of the VAs request for the VA Form 21-8940, and your claim should
get processed properly (knowing full well that the VA rarely does what it should). Take a look at 38 USC 5103(b)(1)
for the authority on this.
5) The VA will NOT give you an exam for a TDIU claim unless you specifically identify the
medical condition that led to the Unemployability.
Hell, they may not even give you the exam anyway.
But the important point to note, here, is that you should list on VA
Form 21-8940 every single medical condition that is, or that you
believe should be, service-connected that you believe plays a role in
rendering you unemployable.
They may not give you a CP exam on each of those conditions - but
at least you've laid the groundwork for arguing later that the VA failed
to fulfill its Duty to Assist if it denies your claim.
And, by the way, in about half of the cases where the VA says that the
Veteran never submitted a VA Form 21-8940, I've found that they
have already submitted at least one copy of the Form.
How do you find out if you submitted one and the VA is just not seeing
it? Get a copy of your C-File: it's the most important document in
your VA Claim.
Chris Attig, an Accredited Veterans Benefits attorney and Founder of
the Attig Law Firm, PLLC is responsible for the content of the site.
The principal office of Attig Law Firm, PLLC, is located in Dallas, Texas. Chris Attig is NOT Certified by the Texas
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