What Is the VA Disability 70-40 Rule?

The 70-40 rule, which is officially called the TDIU (Total Disability due to Individual Unemployability) loophole, allows veterans who are not completely disabled to receive 100% disability benefits, at least in most cases. The TDUI rule often applies to veterans with nonfatal asbestos poisoning diseases, such as pleural thickening. This condition constricts the lungs like an accordion.

The 70-40 rule applies if the veteran has a combined disability rating (two or more conditions) greater than 70%. One of these conditions must be at least 40% disabling. If Paul’s fall causes a permanent bad knee but he can still walk, and asbestos fibers on the ship cause pleural thickening but he can still breathe, he may be entitled to 100% disability benefits.

Math is just the beginning. In addition to qualifying conditions, which often require independent medical examinations (IMEs), a nationwide asbestos exposure lawyer must establish the two legal elements discussed below. The stakes are high for a nationwide asbestos lawyer. The difference between partial disability payments and full disability payments is significant. Furthermore, since these benefits are typically retroactive to the date of disability, substantial back pay could be available.

“Disability” is primarily a medical term that also has other implications. Furthermore, disabled doesn’t mean bedridden. Disabled means unable to work. With these things in mind, let’s break down the TD portion of a TDIU claim.

Medically, many disabled people have good days and bad days. Paul’s knee may feel fine unless it is cold or unless he stumbled down the stairs. If the compensation & pension (C&P) exam takes place on a good day, Paul’s disability rating will be artificially low.

On a similar point, the VA increasingly relies on contract physicians. The VA has less quality control and, more importantly for people like Paul, may have limited specializations. If Paul’s C&P doctor focuses on anatomical issues, s/he may be unable to accurately assess Paul’s pleural thickening-related breathing trouble,

Additionally, VA doctors often cannot assess the combined effect of multiple disabilities. If Paul has a bad knee as well as trouble breathing, he won’t be able to walk as far or stand up as long as someone else.

We should also mention the VA math effect. If an applicant has two 50% disabilities, s/he is not 100% disabled. S/he is 80% disabled. The second disability is 50% of 50%, which is 25% (rounded up to 80%).

Furthermore, the applicant must be unable to work and earn a living wage in an unsheltered environment. Let’s examine these elements from the perspective of a nationwide asbestos lawyer.

Many severely disabled people can work part time or even full time in rather menial jobs, like restroom attendant or Walmart greeter. But these jobs usually do not pay enough to lift the veteran over the poverty line. They certainly do not pay enough to lift the veteran and eligible dependents above this threshold.

A family business is the classic sheltered environment. Frequently, managers look the other way when the veteran’s productivity falls, when the veteran misses work because s/he has a doctor’s appointment, or when the veteran comes in late or leaves early. These concessions are unavailable elsewhere.

Mesothelioma victims need and deserve significant compensation. For a confidential consultation with an experienced nationwide asbestos lawyer, contact the Throneberry Law Group. We have several offices nationwide.