Total Disability based on Individual Unemployability: A Comprehensive Guide
Wed Sep 20 2023|
Veteran Legal Editors
Total Disability based on Individual Unemployability (TDIU) is a part of VA’s disability compensation program that allows you to receive compensation at the 100% rate, even if you service-connected disability ratings don’t directly equal 100%. This is only possible if your disabilities prevent you from maintaining a job.
To qualify for TDIU, a you must have one service-connected disability rated at least 60% disabling or two or more service-connected disabilities with one at least 40% disabling and a combined rating of at least 70% disabling. Additionally, the your disabilities must prevent you from obtaining or maintaining meaningful employment. If eligible, the TDIU benefit allows you to receive compensation at the 100% rate, even if their schedular rating is less than total.
2. Understanding TDIU Myths and Facts
There are some common myths and misconceptions about TDIU benefits. It’s important to separate TDIU facts from fiction.
A common myth is that you can’t work at all if receiving TDIU benefits. The fact is that TDIU requires you to be unable to secure and follow a substantially gainful occupation – marginal, part-time work is allowed. Another myth is that you must have a 100% scheduler rating to qualify for TDIU. However, you can qualify for TDIU with a lower disability rating if your conditions prevent substantially gainful work.
Additionally, some assume that only combat veterans can qualify for TDIU or that you must prove your disabilities are permanently and totally disabling. Neither is necessarily accurate. TDIU focuses on occupational impairment, not the cause or expected duration of disabilities. Clarifying these kinds of misconceptions is key to understanding TDIU eligibility.
3. Eligibility for Individual Unemployability
The basic TDIU eligibility criteria require having at least one service-connected disability rated 60% or more disabling or multiple service-connected disabilities with one rated at least 40% disabling and a combined rating of 70% or more. Additionally, these disabilities must prevent you from obtaining or retaining substantially gainful employment.
Veterans who had to leave their last job specifically due to service-connected disabilities or veterans whose disabilities prevent them from adjusting to other work meet the unemployability criteria. The rating percentages and unemployability factors together determine eligibility. You do not have to be completely 100% disabled or unable to do any kind of work whatsoever. Marginal, part-time, or low-paying work does not exclude TDIU eligibility.
Essentially, any veteran whose earning capacity is impaired by at least 60% due to service-connected conditions that prevent substantially gainful employment can qualify for TDIU benefits. This includes veterans actively working or those who had to leave their past work due to disabilities.
4. Steps to Apply for TDIU
Applying for TDIU involves filing a formal application for Individual Unemployability benefits using VA Form 21-8940 along with supporting evidence. The form allows you to specify your service-connected disabilities and describe how those conditions impact your capacity to secure and follow substantially gainful work.
The application requires information regarding veterans’ employment and education history, including details about previous jobs, the highest level of education completed, any additional training or education attempted, and more. This background helps demonstrate how service-connected conditions impact your employability. Filing the proper application is the first formal step to seeking Individual Unemployability benefits.
5. TDIU Award Types
There are two possible award types for Total Disability based on Individual Unemployability – Schedular TDIU and Extraschedular TDIU.
Schedular TDIU means you meet the exact percentage rating criteria – either one disability rated 60% or more disabling or multiple disabilities combining to 70% or more, with one at least 40% disabling.
Extraschedular TDIU is for veterans who do not meet the schedular criteria but are still unable to secure substantially gainful work specifically due to service-connected disabilities. This type requires extra review but allows more veterans to receive benefits.
Either schedular or extraschedular TDIU results in compensation paid at the 100% rate if approved, but the criteria are slightly different. The distinction mainly impacts what information must be shown to demonstrate unemployability caused by service-connected conditions.
6. Benefits Associated with Individual Unemployability
If eligible for TDIU, you can receive disability compensation at the 100% rate, even if your disability ratings do not total 100% under the rating schedule. The maximum dollar amounts depend on whether an eligible veteran has qualifying dependents, such as a spouse, child(ren), or dependent parent(s).
Effective December 1, 2023, the basic rates for compensation based on unemployability are:
- Veteran alone: $3,737.85 per month
- Veteran with spouse: $3,946.25 per month
So TDIU provides greatly enhanced disability compensation reflecting veterans’ total occupational impairment regardless of their exact disability ratings. Veterans paid at the 100% level due to unemployability also gain eligibility for additional benefits like certain educational assistance options, commissary and exchange shopping access, travel reimbursement for medical care, and more. TDIU opens access to an array of programs for those unable to work due to disabilities.
7. Importance of Effective Dates in TDIU Claims
The effective date assigned for an approved TDIU claim has huge financial implications in terms of retroactive benefits. Under VA law, TDIU entitlement can date back as far as one year before the date of claim if unemployability due to service-connected disabilities is factually ascertainable within that one-year period.
This means you can secure a greater award of back payments up to 12 months before your application date if you can show your conditions prevented employment during that timeframe. Any evidence substantiating unemployability in the year before filing adds to the potential retroactivity of a TDIU grant.
Submitting a claim as soon as service-connected disabilities impact your capacity to work helps lock down the earliest possible effective date. Quickly applying also limits periods with no compensation if TDIU is ultimately approved with a backdated effective date. Filing promptly is key to achieving the maximum retroactivity available.
8. Utilizing Evidence to Support TDIU Claims
Submitting relevant evidence to establish entitlement to TDIU is an essential part of filing an effective claim. Supporting documents that can help substantiate unemployability due to service-connected disabilities include:
- Statements from current/former employers indicating accommodations required or difficulties performing essential duties
- FMLA paperwork describing time missed from work for treatment
- Social Security disability award letters attributing unemployability to overlapping conditions
- Applications for vocational rehabilitation mentioning barriers to securing work
- Private vocational assessments directly relating unemployability to service-connected disabilities
- Physician letters with medical opinions explicitly stating that service-connected conditions render patients unable to obtain substantially gainful employment
You should submit any and all evidence available demonstrating how your disabilities impact occupational functioning and employability. The more evidence directly tying unemployability to service-connected conditions, the better.
9. TDIU and Marginal Employment
Securing only marginal employment does not preclude eligibility for TDIU benefits. CFR 4.16 expressly states that marginal employment, defined as earned annual income below the U.S. Bureau of Labor Statistics’ poverty threshold or employment in a protected environment like a family business or sheltered workplace, is not substantially gainful employment.
Veterans earning less than around $14,000 annually or working in a “protected environment” role can still qualify for TDIU with evidence that their service-connected disabilities limit their capacity for more gainful work. Sporadic, part-time, or low-paying work does not disqualify TDIU claims. Total occupational impairment for TDIU purposes relates to veterans’ ability to follow substantially gainful employment in line with their background and qualifications.
10. Dispelling Assumptions about TDIU
There are many hypothetical questions regarding different personal situations and potential eligibility for Individual Unemployability benefits. For example, some assume retired veterans automatically don’t qualify or that veterans currently working low-wage jobs can’t seek TDIU. Others may wonder if self-employed veterans meet the criteria or if requiring workplace accommodations due to service-connected conditions impacts employability enough for TDIU entitlement.
However, the bottom line is that each veteran’s case depends entirely on the facts and evidence presented. Retirement or current part-time work does not definitively rule out eligibility. TDIU is not precluded based only on age or retirement status – the key factor is whether service-connected disabilities prevent securing and following substantially gainful employment without regard to nonservice-connected conditions, age, or prior work history.
Likewise, needing accommodations due to service-connected conditions could indicate occupational impairment rising to the TDIU level depending on the overall impact on earnings capacity. There is no hard and fast rule concerning retirement, self-employment, accommodations, etc. Favorable and unfavorable evidence must be weighed comprehensively.
11. Constraints VA Can Not Consider for TDIU Evaluation
Importantly, regulations prohibit VA from considering nonservice-connected disabilities or a veteran’s age when determining entitlement to TDIU.
CFR 4.16 clearly states age may not be considered when assessing unemployability for TDIU purposes. So veterans over 65 or even 85 can qualify if service-connected conditions alone prevent securing or maintaining substantially gainful work. Any perceived unemployability related to aging rather than service-connected disabilities should not factor into TDIU decisions.
Likewise, nonservice-connected conditions should not contribute to TDIU determinations. If able to earn above the poverty line absent service-connected disabilities, TDIU would not be warranted. But age and other health issues play no part in evaluating occupational impairment attributable to conditions incurred during or aggravated by military service. Those factors involve completely separate VA disability programs.
12. Permanency of the TDIU
TDIU benefits continue as long as veterans maintain eligibility by meeting the rating percentage criteria and remaining unable to secure and follow substantially gainful occupations due to service-connected disabilities. There is no set duration for TDIU entitlement.
However, VA can formally declare TDIU benefits “permanent” based on certain evidence. Medical exam opinions clearly stating that service-connected conditions will continue preventing employment indefinitely represent an example. Veterans over 55 who receive TDIU for at least 10 continuous years can also receive formal permanency.
A permanency designation relates to the expected lifelong need for TDIU level compensation. Yet qualifying disabilities and unemployability factors must still be monitored even after permanency. Formal permanency adds a layer of future protection but does not wholly replace general TDIU eligibility requirements.
13. Circumstances Entailing reduction or termination of TDIU Benefits
Despite potential permanency as described above, TDIU benefits can still be reduced or even terminated if certain evidence emerges indicating veterans regained employment capacity.
For instance, VA may propose decreasing compensation if medical evidence shows service-connected conditions improved to the point of no longer preventing substantially gainful work. Or if veterans secure a full-time job paying well above the poverty line, VA could move to reduce payment to a lower disability rating reflecting the current level of occupational impairment.
Effectively, if later evidence conflicts with original TDIU entitlement findings, VA can reevaluate the appropriateness of continued 100% disability pay based on unemployability. Veterans could still receive VA benefits but at a lower rate if disabilities improve or employment capacity increases.
14. Understanding Different Terms Related to TDIU
There are other types of 100% disability ratings besides TDIU potentially causing confusion. Key differences include:
100% Schedular Rating: Directly assigned based on disability ratings under the rating schedule, indicating conditions are totally disabling. Schedular 100% ratings focus on medical severity, not occupational impact.
Permanent and Total (P&T) Rating: Indicates disabilities are reasonably certain to continue without improvement for life. Usually includes 100% impairment level but does not necessarily prevent employment.
Total Disability based on Individual Unemployability (TDIU): Compensation paid at 100% rate when eligible veterans are deemed unable to secure and follow substantially gainful work specifically due to service-connected disabilities. The only rating directly involving employment capacity.
So while TDIU, 100% scheduler, and P&T ratings all result in payment at the 100% disability compensation level, each has distinct qualifying criteria. TDIU uniquely entails compensation at the maximum rate based specifically on unemployability caused by disabilities incurred or aggravated during military service.
15. Comparing VA Individual Unemployability Benefits and Social Security Benefits
The Social Security Administration (SSA) offers disability benefits with some similarities to VA TDIU but key differences as well. For instance, SSA involves one uniform program while TDIU falls under VA’s larger disability compensation system with various rating options tailored to veterans.
Importantly, veterans can potentially receive concurrent VA TDIU benefits and Social Security disability payments since the programs are administered independently. Qualifying for Social Security assistance does not automatically establish TDIU eligibility, though approval may supply supportive evidence if conditions overlap between the two claims.
Unlike SSA benefits which could terminate if earning above certain income limits, TDIU compensation may continue when performing marginal employment. And VA TDIU has no direct relationship to retirement benefits, while Social Security disability can convert to Social Security retirement income at full retirement age. So while the SSA and TDIU programs share similarities, key distinctions impact eligibility and entitlement considerations.
16. Steps after TDIU Benefits Claim Denial
Receiving an initial denial after submitting a Total Disability based on Individual Unemployability claim can be frustrating, but key steps to pursue include:
Filing a Notice of Disagreement: This is a written statement indicating disagreement with the denial decision and intent to continue seeking benefits. This important first appeal step is typically due one year from the denial notice date.
Obtaining a Statement of the Case: After filing a Notice of Disagreement, VA will furnish an SOC re-listing evidence, applicable laws, and reasons for the denial.
Submitting VA Form 9: Form 9 formally perfects the appeal to the Board of Veterans’ Appeals for further claim review after studying the SOC.
Supplemental Claim Option: Veterans can submit new, relevant evidence regarding TDIU entitlement and request reevaluation rather than pursuing traditional appeal using Form 9.
Regardless of chosen appeals route, seeking assistance from an experienced VA TDIU attorney or accredited representative offers value in overcoming denial challenges and successfully establishing unemployability entitlement. An advocate familiar with Individual Unemployability criteria can prove crucial for obtaining a grant.
17. Cost of Hiring an Attorney for TDIU Appeal
Qualified attorneys well-versed in TDIU cases typically offer representation on a contingency fee basis, meaning no out-of-pocket costs to veterans. That allows focusing on securing evidence and advocating for benefits rather than attorney fees.
If successfully appealing TDIU entitlement after an initial denial, attorney fees by law must come from retroactive disability compensation the veteran receives, capped at 20% of past-due benefits awarded. So attorney costs essentially self-pay from a portion of obtained benefits only after winning appeals. Veterans owe $0 personally.