What is TDIU?
TDIU (Total Disability/Individual Unemployability) is a significant benefit for many Veterans.
TDIU allows a Veteran to be compensated as 100% disabled, even though your service-connected disabilities may not add up to 100% (even using VA Math).
TDIU is a part of VA’s disability compensation program that allows VA to pay certain Veterans compensation at the 100% rate, even though VA has not rated their service-connected disabilities at the 100% level.
TDIU most commonly comes into play when your service-connected disabilities prevent you from engaging in substantially gainful activity.
Keep in mind as we go through this overview that words matter, and that the VA has special words that mean special things. The phrase “substantially gainful activity” for example – the term is completely undefined by the VA, and they have resisted (hard!) the pressure from the Court and advocates to define the term. By not defining the term, it gives them options when they decided to deny a veteran a rating for total disability based on individual unemployability.
TDIU is just another way to get to a 100% rating: Total Disability based on Individual Unemployability is available if you are unable to get or keep substantially gainful activity because of your service-connected injuries.
TDIU is a very powerful tool for a lot of Veterans, allowing them to live on a sustainable income when their service-connected conditions, illnesses, injuries and disabilities prevent them from working.
There are Two kinds of TDIU.
This is the first thing that many Veterans don’t know – there are 2 ways to prove entitlement to TDIU : Schedular and extra-schedular.
Don’t get me wrong – you still have to prove all the elements of the claim for TDIU, whether schedular or extra-schedular. However, the “essence” of the analysis depends on whether you are claiming schedular or extra-schedular TDIU .
This is, by far, the most common type of TDIU .The word “schedular” is a reference to the VA’s Table of Rating Disabilities – also known as the Schedule for Rating Disabilities. Basically, whenever the VA refers to something being a schedular rating, it is because that rating is tied, directly or indirectly, to the VA disability rating schedule in 38 C.F.R. Table 4.
This benefit allows the Veteran to receive a 100% disability rating if he/she is unable to secure substantially gainful employment and has ratings that reach the following levels:
a) a single service connected disability rated at 60% or more, or
b) the result of 2 or more service-connected disabilities where the total rating is 70% and at least one disability is 40% or more.
The VA Regional Offices frequently fail to consider schedular TDIU even when these rating levels are achieved – so read your VA Ratings Decision carefully.
The VA Regional Office should infer a TDIU claim in two situations:
a) whenever the Veteran’s service-connected impairment ratings reach the above levels (To remember these numbers, I call it the “60-70-40 Rule” for schedular TDIU.
b) whenever you have submitted, as part of a claim for increase or an original claim for service connection that includes evidence that you are unable to get or keep substantially gainful activity because of your service-connected condition.
Extra-schedular TDIU .
The Extra Schedular TDIU process is not easily understood or applied by Veterans, VSOs, lawyers, advocates, and judges alike.
It is, allegedly, the policy of the VA to rate all veterans as 100% disabled that are unable to get and keep substantially gainful activity because of their service connected medical disabilities regardless of the percentage awarded.
Now, the VA obviously doesn’t fulfill its own policy, and I think sometimes just doesn’t realize that this is their policy. I’ve seen them argue that veterans are not getting a 100% rating for their service connected conditions so they shouldn’t be able to get rated as 100% due to unemployability. I’ve seen them argue that the veteran is working and should not be entitled to a 100% unemployability rating (this happens very frequently in some common employment situations faced by disabled veterans, for example: a veteran is working a part time job, or a low paying job, is frequently changing jobs, or has to take a lot of time off from work.)
For extra-schedular TDIU to be awarded, the VA requires only that your disability render you unable to get or keep substantially gainful activity.
That’s it. In a way, it really doesn’t matter what your VA disabilities are rated at – so long as you show that you are unemployable because of your service connected disability, you are eligible for TDIU.
Now, to get a TDIU rating on an extra-schedular basis, the VA Regional Office has to refer your appeal to the Director of Compensation and Pension, who makes the decision. As you can imagine, when one of the Top 5 employees is making the decision, the Regional Offices aren’t going to send this one out for a rating very often.
In fact, extra-schedular TDIU almost always involves perfecting a BVA appeal in the goal of securing a remand, or an appeal to the Court of Appeals for Veterans Claims (CAVC) .
Five Things to Keep in Mind for Any TDIU Claim.
Keep in mind, these are “common” factors – and certainly not “all” factors that are relevant in every TDIU claim.
TDIU Factor #1: Social Security Disability.
Receipt of these benefits is relevant information.
SSDI requires that a person be unable to participate in “substantial gainful activity” in order to be considered disabled. (While this is a legal term of art that will require considerable understanding of its meaning, one thing is clear – “marginal employment” is NOT “substantial gainful activity” before the VA).
If the SSDI is approved based solely on your service-connected disability, this is a very relevant factor for the VA Regional Office to consider.
Frequently, SSDI is approved for a collection of conditions that preclude the Veteran’s ability to participate in a “substantial gainful activity”. These often leads to confusion for Veterans who believe that their SSDI was based on “Condition A” which is service-connected, but in reality the SSDI Decision was based on Condition A and Condition B (the latter of which is frequently not service connected).
TDIU Factor #2: Non Service-Connected Conditions.
The VA may not consider Non-service-connected disabilities in the evaluation of TDIU .
However, my first question as a Veteran advocate is if the non-service connected disability is impacting the ability to work directly, or if the non-service connected disability is aggravating or secondary to the service-connected condition (resulting in reduced employability).
If the latter situation applies, then I might ask why the Veteran hasn’t pursued service-connection of the currently non-service connected condition.
In quite a few cases, though, the Veteran may be overlooking the impacts that Condition A and Condition B are having on each other, and the question worth asking is this: can the non-service connected condition be service connected on a theory of aggravation or secondary service-connection?
If so, the Veteran may not need to fight for extra-schedular TDIU at all, depending on the outcome of the secondary or aggravation claim.
TDIU Factor #3: Education and Employment History.
This is an area ripe for error by the VA. The focus of these factors is the totality of the Veteran’s current situation. Assume you are a lawyer and even though your service-connected conditions were impacting your work, you were employed on Monday.
If you could not work on Tuesday because of the service-connected disability, the temptation is for the VA Regional Office to say that the situation is temporary, or you were just employed, or you are highly educated and can certainly find gainful employment. At least in theory, the VA Regional Office has a point.
However, the focus of the TDIU evaluation is the totality of your present circumstances – not speculation on the path forward for the highly educated or long-employed Veteran.
TDIU Factor #4: Frequent Hospitalizations.
If a Veteran is frequently hospitalized for his or her condition, and this interferes with the Veteran’s work or employability, the hospitalizations are a factor that should be considered by the VA Regional Office in a claim for TDIU .
TDIU Factor #5 Age.
The VA may not consider age in the evaluation of TDIU .
Medical and Vocational Experts in TDIU Claims.
Watch a video interview with just such an expert for TDIU claims.
The BVA has frequently held that the Veteran’s opinions and assertions that he/she is unable to maintain gainful employment due to his/her service-connected condition is not a competent medical opinion.
Post your questions or comments on TDIU below – I can’t respond to personal questions, but I will look for common questions about TDIU that many veterans have or unique questions about TDIU that I think veterans can benefit from.
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First published: Sep 22, 2016 @ 11:08
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