TDIU: VA Individual Unemployability and Benefits
Category: Veterans Disability Law
Article by Tuley Law staff
When a veteran is physically or mentally disabled as a result of time in the military, the U.S. Department of Veterans Affairs (VA) is responsible for determining and providing compensation if necessary. If a veteran’s disability prevents them from getting or keeping work, they may be eligible for a specific type of benefit called Total Disability Based on Individual Unemployability (TDIU).
What is TDIU?
TDIU is a VA benefit that provides the maximum compensation to a veteran based on their ability to obtain and/or maintain substantially gainful employment. Aside from a few exceptions (see below under ‘VA Individual Unemployability and Working’), a veteran who is deemed incapable of finding or working for an income above the poverty line is able to receive benefits equal to individuals with a 100% disability rating.
There are two types of TDIU recognized by the VA:
- Schedular TDIU
- Extraschedular TDIU
These categories are documented in policy 38 CFR 4.16, total disability ratings for compensation based on unemployability of the individual.
Schedular vs Extraschedular TDIU
Both forms of TDIU allow a veteran to receive maximum compensation with a lower than 100% disability rating. There are multiple ways to qualify for Individual Unemployability VA benefits. under schedular or extraschedular TDIU.
To be eligible for a schedular TDIU rating, one of the following criteria must be met:
- The veteran has a service-connected disability with a rating of 60% or higher that prevents them from earning a wage above the poverty line.
- The veteran has at least two disabilities that have a combined rating of 70% or more. At least one of the disabilities must have a rating of at least 40%, and the disabilities must prevent an individual from finding or keeping work.
The 60% rating in the first criteria and/or the 40% rating in the second criteria can be met in multiple ways. Here are some examples of how disabilities can be combined to meet these requirements:
- The veteran’s disabilities were both caused by a single accident or common etiology (e.g., a traumatic event or injury during military service).
- The veteran’s disabilities all affect a single body system, such as the respiratory or nervous system.
- The veteran’s disabilities are considered action-related injuries that occurred as a result of time in combat.
- The veteran’s disabilities are the result of being a POW, or prisoner of war.
- The veteran’s disabilities affect one or both lower extremities, or one or both upper extremities. This includes the bilateral factor, which applies when a veteran incurs disabilities on paired skeletal muscles, adding 10 % to their rating.
If a veteran does not meet the requirements for schedular TDIU, but still has one or more service-connected conditions that prevent them from being gainfully employed, they can still qualify on an extraschedular basis.
There is no rating requirement for an extraschedular basis TDIU, the only thing that matters for an extraschedular rating is whether or not the Director for Compensation Service for extraschedular consideration rules that the veteran’s service-connected disability prevents them from substantially gainful employment. The director’s opinion decides whether or not they receive unemployability benefits.
If the director reaches an unfavorable opinion, a veteran’s attorney or advocate can argue the decision if it is inadequate. If sufficient proof can be provided the decision may be reversed.
As previously stated, benefits for TDIU are equivalent to benefits for a 100% VA disability rating. Compensation for this rating is over $3,000 a month, with additional benefits to veterans who are married or have dependents. A veteran will continue to receive this maximum amount unless their circumstances require TDIU to be revoked.
TDIU is allocated on the notion that an individual will not be able to work and receive a living wage due to their service-connected disability. However, there are still ways a veteran can work while receiving TDIU.
VA Individual Unemployability and Working
The VA will continue to provide TDIU benefits as long as the work a veteran does is not considered to be substantially gainful. To the VA, substantially gainful indicates employment for which a veteran earns an income above the federal poverty threshold. In 2021, the poverty line for an individual sits at $12,880 a year, and any annual income below this is considered by the VA to be marginal. Those who are marginally employed can still receive TDIU benefits while working.
TDIU VA Work Requirements
Veterans can also receive TDIU VA benefits if they are employed in a protected work environment. Protected work environments include family businesses, jobs with specific accommodations, or jobs from which you cannot be fired. Even if a veteran’s earnings are above the federal poverty threshold, they may still be entitled to Individual Unemployability benefits. This is because the VA does not consider protected work as substantially gainful employment.
Unfortunately, whether or not TDIU claims are approved often comes down to VA speculation. For example, the term sedentary work has a recognized legal definition:
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally, and other sedentary criteria are met” (20 CFR 404.1567[a]).
However, the VA will sometimes incorrectly deny a TDIU claim on the basis that an individual can perform sedentary work when their disability prevents them from doing so. This is an example of a time when the veteran may want to seek legal assistance to argue the VA’s decision.
VA TDIU Vs. 100 Disability Rating
As mentioned above, TDIU benefits are equivalent to a schedular 100% VA disability rating. The two terms are often used interchangeably because they offer the same compensation, but there are differences in the requirements that make them two distinct concepts.
First off, a veteran cannot receive a 100% rating unless they have one or more service-connected disabilities that total 100%. A TDIU can be given out at 60% or 70%, allowing for the VA to take some liberty in determining whether or not a veteran’s condition prevents them from obtaining or maintaining substantially gainful employment.
Another difference between the two has to do with the effects on future employment status. While TDIU only lasts as long as the beneficiary is marginally employed, a 100 rating puts no restrictions on how much the veteran can make. 100 rating benefits will continue as long as the veteran is disabled regardless of their work situation. If a veteran’s disability improves to no longer meet the 100% VA rating criteria, they will no longer receive those benefits.
Veterans can also receive a permanent and total (P&T) disability rating when the VA believes they have little to no chance of recovering from their disability. A P&T rating will continue indefinitely unless circumstances change dramatically. P&T ratings are available for individuals with a 100 rating or TDIU.
How to File for a VA TDIU Claim
The VA TDIU process involves making a regular VA disability claim with additional information included that provides evidence of your inability to get or keep a steady job. A claim can be filed online at the VA’s website.
When filing for TDIU, you must also fill out the following two forms to be considered for Individual Unemployability benefits:
- Form 21-8940 — A Veteran’s Application for Increased Compensation Based on Unemployability (download PDF)
- Form 21-4192 — A Request for Employment Information in Connection with Claim for Disability Benefits (download PDF)
If the VA comes to an unfavorable decision on your claim, it may be in your best interest to hire a VA disability lawyer that can help you argue for a better outcome.
Working with a VA Disability Lawyer
Going into the VA TDIU claim appeals process with an experienced attorney on your side can significantly increase your chances of receiving a favorable decision. The VA disability lawyers at Tuley Law have the knowledge necessary to answer any questions you may have in regards to your TDIU claim.
Have questions about your case?Contact us