(Transcript)

Cindy Speaker:  Good afternoon. My name is Cindy Speaker. Thank you for being with us for our broadcast today. I have with me, as my guest, Attorney Nathan Guin of Gardberg & Kemmerly. Nathan is a veterans’ disability lawyer, and what he’s going to do is he’s going to talk with us today about a topic, individual unemployability. Nathan, thanks for being with us today.

Nathan Guin:  Thank you for having me. It’s been a little bit. It’s been crazy with the holidays, and hearings, and all sorts of things, but I’m glad we got a chance to connect and get some good information to our veterans today.

Cindy Speaker:  Me too. You’ve been very busy.

Nathan Guin:  Yeah. It’s good, though. It’s better to be busy than bored. That’s what I always say, so it’s been nice.

Cindy Speaker:  Yeah. Well, that’s good. Because individual unemployability is such a long name, let’s call it IU for the sake of this conversation. Tell us, first of all, Nathan, what is IU?

Nathan Guin:  The best way to describe IU is it’s, essentially, the Social Security of the VA. That might be too simplistic, but what it does is it’s a different way to maximize your benefits. Typically speaking, you would have somebody who is service-connected for whatever condition or conditions, and there’s a diagnostic criteria, and you try to … Basically, you would try to get the highest rating you could based on the diagnostic criteria. Most of those go up to 100, but it’s very difficult, if you have multiple or one condition, to get 100% by the diagnostic criteria. It gets very difficult.

The higher your total percentage is, the harder it is to get an increase if you get another grant. What unemployability does is, if you were at 60% for one particular condition or 70% for multiple, one of which, with some different variations, is at 40%, you can apply for unemployability, and at that point, they can grant you 100% payment even if you’re not, technically, at 100% percentage-wise, so it gives you a couple different avenues to take to try to maximize your benefits.

Cindy Speaker:  Okay. I’m smiling because this is very complex what you’re talking about.

Nathan Guin:  It gets a little hairy sometimes, but at its base, it’s not too complicated, but then again, I do deal with it pretty much every day, so maybe I’m just used to it.

Cindy Speaker:  Right. I think you’re just used to it.

Nathan Guin: It’s definitely a great tool.

Cindy Speaker:  Yeah, I think you’re just used to it. Well, let me ask you this. What are the benefits of applying for IU and the benefits of a grant of IU?

Nathan Guin:  I think I kind of got into that a little bit with the last question, but so applying for IU is really beneficial because it gives you, what I would say, multiple bites at the apple. You have the IU claim in and of itself, but if you’re also applying for increases, it’s tied into those issues. If you’re going for an increase, and you’ve put in for unemployability, that’s implicit. They have to discuss the unemployability with that other issue. You may have them in different notices of disagreement, different stages of the appeals process, but under the law, if you’re going for an increase for anything, they have to consider the unemployability issue as well if you’ve raised it by the record. The way you do that is to put it in the VA 21-8940, which is the specific form for that.

Cindy Speaker:  Okay, okay. Very good. Now, are there special requirements that a veteran must meet in order to be eligible for IU?

Nathan Guin: Right, so there are, and we talked about this, I think, a little bit in the first question too, so like I said, if you have one thing at 60%, for example, if you have prostate cancer at 60% or PTSD at 70%, because it doesn’t have a 60% rating, you would be eligible, just based on those, to apply for unemployability. You would meet what they call the schedule of ratings. Another way to do it would be let’s say you have diabetes. Easy example is if you have diabetes at 20% with some radiculopathy issues that total up to another 20%, or 30%, or whatever it may be, and then your total is 70% but those issues, by themselves, are 40%, you would be eligible based on the schedular requirements. The only other thing that you have to show after that is that you’re not capable of performing greater than marginal employment, which the definition on that … I don’t even believe they have a definition, but that’s the other part you have to show, and a lot of that comes through medical opinions and medical evidence.

Cindy Speaker:  Okay. Well, we’re covering these a couple different ways, and I know you said you covered a little bit in the first question, but here’s the thing. It’s very difficult for a layman like me to understand, so even though it’s easy for you, I do think that it’s kind of complicated, and the average veteran, my guess is, would not be familiar with all these different types of laws and requirements. Do you find that or do you find that most of them are pretty well understanding the topic before they come to you?

Nathan Guin: I will say it’s probably about a 30/70 split from people who know about it and don’t, so about 30% of the new clients we have have heard of it, or if we’re still representing them, they say, “Hey, I can’t work anymore. I want to file for IU.”

Cindy Speaker: Yeah. Okay, good.

Nathan Guin:  That may be because we discussed it before or they thought about it, but for the ones that don’t know what it is, it can be complicated. It’s kind of difficult, sometimes, to explain, so it’s nice that we have kind of a long form deal today to put it out there.

Cindy Speaker:   I know. Yeah.

Nathan Guin:  There’s just so many different ways it’s … The way that it intertwines with all the different service-connected issues, I think is kind of what the hardest thing to wrap your head around is is when you say, “It’s a great way to maximize your benefits,” and then you tell them how it’s going in five different directions. It can get kind of hairy. You can go down some rabbit trails pretty easy, but it is … As complicated as it may seem, as it might be, it is a really great benefit for our veterans and a good tool to take advantage of, for sure.

Cindy Speaker:  Yeah, yeah. For those of you that are watching, there’s an archive, a full library of other topics, other veterans’ disability law topics that will help you understand even more about that whole area of law.

Nathan Guin: Hopefully.

Cindy Speaker: Let me ask you this, and I’m going from my script again because I don’t understand the language, so I want to make sure I get it right. What are the basic standards used by the VA to determine whether a veteran is entitled to IU?

Nathan Guin:  Like I said earlier, the requirements, the schedular requirements are first and foremost, so if you don’t have the ratings, while there are other ways to argue it, you can argue for an extra-schedular rating or unemployability based on extra-schedular considerations, which is probably a different show unto itself, but you have to have the ratings first in terms of just the typical way you would receive IU. You have to have the ratings right or else you’re going to run into some problems.

The standards that they use, like I said earlier, they say greater than marginal employment. There’s a lot of kind of subjective terms, and they don’t necessarily define those, and so the best way, really, I think, to develop those cases, since there isn’t really a strong standard other than the percentages, is medical opinions, medical evidence. If you have good relationships with your doctors, things like that are typically … You can kind of overcome the uncertainty of what is greater than marginal employment, what does that mean? Because no one’s going to know. I barely know what it means because they haven’t given me a definition. I just kind of infer. You have to have the ratings, and then, other than that, you would really want some strong medical evidence, mostly because the VA does not give you a good description in terms of what you need, what’s the minimum that you need, what’s required, so it’s better to try to go kind of above and beyond if you can.

Cindy Speaker:  Yeah, yeah. That makes sense. Well, if you are granted IU benefits, are they final and permanent or can they be revisited and, potentially, discontinued?

Nathan Guin: Yes and no. What you might see on a grant is it may say, “This is a final and permanent grant of benefits,” and then, at that point, you don’t have to worry about any kind of reevaluation or anything like that. In other cases, if they don’t use that language, typically, for any case, whether it be for IU or a grant for arthritis or PTSD, whatever it is, around three to five years out, they might look into the medical records and say, “Does it look like there’s been improvement?” If there has, they’re required to give you notice, so if they want to try to reduce any benefits, sever any benefits, they have due process requirements that they have to go through, so you’ll be notified at the proposal and given an opportunity to combat and rebut their proposal to reduce benefits, but they can be proposed to be reduced.

A lot of times, that can be overcome fairly easily, but it is something that you would … If you’re three or five years out and you haven’t heard anything from them, you might, you may not, but it’s certainly a possibility, but you have rights, you have options. There are ways to fight it. There are also ways to fight it where you can keep getting paid at the same benefit rate while you’re waiting for a hearing, potentially, as opposed to them cutting it out and then you having to go without or go with less for that pendency period. There are options to fix that, but something to be on the lookout for.

Cindy Speaker:  Yeah, yeah. Anything else you want to add for us in terms of this topic? I want to make sure we really covered it here and kind of hit all aspects of it.

Nathan Guin:  One thing I would like to say, as strategists get it, to make it as simple as I can, is if you can’t work and it’s because you have a service-connected disability, it’s the reason you can’t work, even if it’s not meeting the schedular requirements we talked about today, that is just a requirement for eligibility. It doesn’t mean that you can’t get there. If you can’t work and it’s because of a service-connected disability, go ahead and file for it even if you … or contact an attorney, if you want to, and file for it. Ask them to file for it if you already have one.

It never hurts to raise the issue because then, once you put that form in, that standardized form they require, which again is the 21-8940, then it’s in your record perpetually, so they’ll always have to look into it. They can look into it on a extra-schedular basis, which we can get into in a different show. Advocate for yourself if you can’t work and you’ve got a injury or a disability that’s service-related, even if it doesn’t meet the schedular requirements. Go ahead and put in the application because then you don’t have to think about it anymore, and you can raise it as you go forward with your claim.

Cindy Speaker:  Yeah, yeah. For those that do have questions and would like to consult with an attorney, Nathan, how’s the best way to reach you guys?

Nathan Guin:  There’s a couple of different ways you can reach us. You can call us at 251-343-1111, or you can reach us online at www.gardberglaw.com. That’s G-A-R-D-B-E-R-G-Law.com. Well, if you call us, then we’ll give you the email addresses for our wonderful staff so you can send in any information we may need from you.

Cindy Speaker: Excellent. Am I correct you handle these cases all over the country?

Nathan Guin:  We do. That’s the great thing about the VA system is that I’m licensed in Alabama, but I’m accredited with the VA, so actually, in all this crazy hubbub over the last couple months, I was in Waco for a hearing, so I’ve been in Jackson, Waco, Montgomery, been all over the Southeast.

Cindy Speaker:  Wow.

Nathan Guin:  I’ve been all over the country. We can do them anywhere, and we can advocate for you wherever you might be.

Cindy Speaker:  Terrific.

Nathan Guin: Don’t hesitate to reach out for us. We might be in Alabama physically, but we’re all over the country in terms of what we can reach.

Cindy Speaker:   Yeah. That’s great. That’s great. Nathan, thanks for being with us today.

Nathan Guin:    Absolutely. Thank you for having me, and it’s my pleasure, as always.

Cindy Speaker:   Always love talking to you. For those of you that are watching, if you have questions or comments, feel free to leave them right on this page, and we’ll make sure they get answered, and we’ll get back to you. Thanks, everybody. Bye.

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