3 Ways to Get an Individual Unemployability (TDIU) VA Rating
Video Transcription
Michael Lostritto: Hi and welcome to CCK Live. My name is Michael Lostritto and I’m an attorney here at CCK. Today, I’m joined by Brandon Paiva and also Bethany Cook. Both are accredited claims agents with our firm.
In this video today, we’re going to be breaking down three ways veterans can get a TDIU VA disability rating. So, Bethany, why don’t we start with you? Can you tell us a little bit about what TDIU is? What does it stand for?
Bethany Cook: Yeah, so TDIU is the acronym we use to… the short name for a very long benefit which is called the Total Disability rating based on Individual Unemployability. We’ll call it TDIU for the rest of this video. But, TDIU is essentially a benefit that allows for veterans to be compensated at the 100% disability rating, even if their combined schedular rating does not equal 100%. So, for example, if your combined rating is 70% but you’re awarded TDIU, then you’ll be compensated as if you are rated at the 100% level.
TDIU is awarded in circumstances in which veterans are unable to secure or follow substantially gainful employment due to their service-connected disabilities. And since it gets you compensated at the 100% rate, if you’re awarded TDIU right now, the current payment for a single veteran is $3,332.06. And then, there’s additional compensation that can be added if you have dependents, which you can find more information about on our website if that applies to you.
Michael: Great. Yeah. Thank you, Bethany. And so, that is what TDIU is. That’s what the rate is. But the question is, how do you get VA to grant you an individual unemployability rating?
And so, Brandon, turning to you. The first thing we want to look at is understanding the eligibility requirements specific to the benefit. Can you walk us through that?
Brandon Paiva: Absolutely. So, VA outlines two ways in which veterans can typically meet the eligibility requirements for TDIU. In order to qualify for TDIU under 38 CFR 4.16a, or schedular TDIU, a veteran must have one service-connected condition rated at 60% or more. So, that’s assuming that you only are service-connected for one disability, and that one disability needs to be rated, like I’d said, at 60% or higher in order to qualify for TDIU under 4.16a.
If you do have more than one service-connected disability, so essentially you have two or more service-connected conditions, one of those service-connected disabilities needs to be rated at least at 40% or higher, and you must have a combined rating of 70% or higher as well. So, one service-connected disability with 60% or more rated for that one disability or, if you have two or more, one of those disabilities needs to be rated at least at 40% and then your combined rating needs to be at least 70. So, that’s what 4.16a says.
Now, veterans who don’t meet the schedular requirements under 38 CFR 4.16a may still be considered for TDIU, but it will be considered under what’s called extraschedular TDIU, under what’s called 4.16b. If you don’t meet these criteria, VA will essentially determine if their case should be referred to the Director of Compensation Service for extraschedular consideration.
In order to be eligible for TDIU, veterans must demonstrate that they are unable to obtain or maintain substantially gainful employment due to their service-connected conditions, like my colleague Bethany had sort of explained a few moments ago. Now, substantially gainful employment means that the person earns above the federal poverty threshold for one person. However, two situations can exist when veterans may be employed and still qualify for TDIU. So, we’re going to unpack that just a little bit here.
The first is what’s called marginal employment. So, veterans who are employed can still apply for TDIU and will still be eligible for TDIU if they have what’s called marginal employment. These veterans who are currently working, but earn below the poverty threshold, may qualify for individual unemployability benefits. So, essentially, yes, you are working but you are not earning that wage that, you know, federally speaking, gets you to the poverty threshold. So, you can still apply even though you’re working.
The second scenario is what’s called under a protected work environment. So, say you’re working but you have special accommodations that are made by your employer that allow you, the veteran, to work there with no reduction in pay or benefits. That is what we classify as a protected work environment. Essentially, veterans who are employed in a protected work environment may still qualify for individual unemployability benefits from VA even though they are still working and could still be potentially earning above that poverty threshold. So, although you are working, you could be working under what’s called marginal employment or you could be working under what’s called a protected work environment and still be eligible to apply for TDIU.
Michael: Yeah. Thanks, Brandon. That’s critically important, that multi-step process that we walk through, and I know when we analyze a case, when VA looks at cases, hopefully they’re analyzing it that way at least. And that really is the first step, I think, to understanding whether TDIU applies in your situation and how you might go about advocating for it. The second thing is the submission of VA Form 21-8940. So, when seeking TDIU, in most instances, VA will require the veteran to submit this form. Again, it’s VA Form 21-8940 and it’s called the Veteran’s Application based on Individual Unemployability. This form is really just that; it’s an application for an increase in the veteran’s rating and, therefore, an increase in compensation based on the veteran being unemployable due to service-connected conditions.
What’s interesting about this is that this is not, technically speaking, a claim in and of itself. And so, the VA, you know, 8940 form doesn’t technically need to be submitted in order for veterans to obtain the TDIU benefit. The trick though is that, unfortunately, VA, in most instances, requires veterans to submit it. Interestingly also, the issue of TDIU can be what’s known as reasonably raised by the existing evidence in the veterans record, meaning that, you know, you do not need to necessarily have to submit any new evidence with the claim but you can point to evidence which shows that the veteran’s service-connected conditions impact their ability to work in some way from evidence that’s in the record.
Again though, in most cases, the forms should provide VA with the information they need to fully adjudicate the claim, which is why VA typically requires that the form 8940 be submitted.
The 8940 can be helpful because it does contain much of the information that VA needs to determine whether the veteran is, in fact, eligible for TDIU. So, this includes information on the form related to the veteran’s work history, the veterans level of educational attainment, any skills that the veteran might have, when the veteran last worked both full-time and when he or she became too disabled to work based on his or her service-connected conditions. So, it does include a lot of critical information that VA does rely upon when adjudicating these cases, but I think it’s just important to know that, technically speaking, it’s not a claim in and of itself.
TDIU can nevertheless be raised with a veteran’s underlying increased rating claim and VA should adjudicate that issue. That being said, again, I think it’s best practice to submit the form to trigger VA to act in these cases.
Bethany, turning back to you. Can you walk us through, kind of, the third critical piece to securing a TDIU grant? Really, it comes down to supporting your claim with sufficient evidence to show that the benefit is warranted, right?
Bethany: Yeah, so once you’ve raised the issue of TDIU, in order for VA to award it, they have to make a finding that you’re unable to secure and follow substantially gainful employment due to your service-connected disabilities. And in order for VA to make that finding, they’re going to need evidence.
So, there’s a lot of different types of evidence that can be helpful for you to submit in support of your claim. I’ll go through a few of those types of evidence. The first type of evidence that you can submit very easily is lay evidence.
So, if you, as a veteran, think that you’re unable to secure and follow substantially gainful employment due to your service-connected disabilities, you can submit lay testimony describing your functional limitations. It’s helpful if you submit lay evidence for it to be very specific. So, in talking about your service-connected limitations, make sure to provide details about how often they happen, how severe they are, examples of tasks that you’re unable to perform – because that would be very helpful. And it doesn’t just have to be lay evidence from yourself. Submitting lay evidence from friends, family, even co-workers or former supervisors can also be really beneficial.
Another type of evidence that is very important is medical evidence, either your private treatment information or your VA Medical Center treatment. Treatment records will often contain important information regarding your functional limitations. If, for example, you are service-connected for PTSD, your psychological treatment will have information from your medical provider, which VA often relies on to, kind of, determine whether you are prevented from securing and following substantially gainful employment or not.
Other things that are helpful are employment records, especially if you had any accommodations and work in the past or if there were any issues in your performance, that is obviously evidence that you had difficulty working in the past due to your service-connected disabilities. So, if you do have that, definitely submit it.
And, kind of on the same note, Social Security determinations can also be really helpful. Oftentimes, if you are applying for TDIU, you might have also applied or be getting Social Security disability benefits. So, if you have done that, try to get those records. Sometimes, VA will even try to get themselves there where they exist, because Social Security is ultimately trying to make a similar finding that you’re unable to work due to your service-connected disabilities. So, they’ll have information regarding your specific limitations.
And then, a final type of evidence that CCK often obtains ourselves is expert vocational reports. So, these are basically examinations or evaluations conducted by vocational experts who are experienced and knowledgeable in the subject. They have training, they have degrees, and they have experience talking about service-connected, or generally, disabilities and how they impact a person’s ability to work.
Vocational experts are particularly qualified to examine your work history, your educational background, and your conditions, and talk about how they all go together. You might have work experience in the past that you can no longer perform due to your service-connected disabilities and having a vocational expert make that assessment can be extremely beneficial.
Michael: Now, Brandon, a question that we often receive here from our clients and others is whether TDIU, in and of itself, by its very nature, is a permanent benefit. Can you tackle that for us?
Brandon: Sure thing. That’s a great question. So, in short, TDIU is not necessarily considered permanent and it’s not really a guaranteed benefit. VA can basically propose to take it away for a few reasons, one of which, you know, as an example to provide: if we have a veteran who was working and they’re earning substantially gainful earnings, substantially gainful employment, and they’re working in a position that is not considered a protected work environment and they’re doing so for more than one year, VA can then propose to take away that TDIU benefit.
Another instance in which VA can basically propose to take away TDIU is if a veteran fails to send in what is called the employment questionnaire, otherwise known as the VA form 21-4140. This is something that VA sends out usually every single year (UPDATE: As of 2019, VA no longer requests this form annually. Now VA monitors income through sources like the Social Security Administration, only requesting that veterans fill out Form 21-4140 if there is evidence of possible substantially gainful employment), and asks questions to the veteran who is receiving TDIU benefits, basically to confirm their employment status. It’s very important for veterans to fill out this form and send it back to VA as, oftentimes, failure to do so can, and often will, result in VA revoking the veteran’s TDIU benefits.
When we’ve seen these forms get sent to our clients, oftentimes, it’s just simply checking off a box, saying Yes or No, “do you continue to be employed or not employed,” anything like that, and then you just mail it back to the VA. Oftentimes, they may or may not issue a decision. They’ll just continue the benefits unchanged.
But, VA tends to send these things out more and more as we’ve seen the years go on, especially in AMA. We’ve seen more and more of these 4140s get sent out to our clients and other veterans who receive TDIU. So it’s very, very important that if you receive this letter, oftentimes VA will give you a deadline. Fill that form out and send it back to the VA soon as possible to hopefully ensure that your benefits will continue unchanged.
Michael: Yeah, that’s terrific advice. And so you can see that, although TDIU, when granted, pays out at the maximum 100% rate and therefore it would be considered total in that sense, it’s not necessarily permanent. So, for veterans who come to us and say that they need to submit a form to their local county clerk or something to verify that they are permanent and total, you know, it’s important for them to consider the fact that: yes, they have TDIU; yes, they may be considered being totally compensated; but it may or may not be permanent in nature. So, good things to consider, Brandon.
As you can see, this is a really complex topic. The eligibility requirements are lengthy and there’s a lot that goes into determining whether a veteran actually qualifies for the TDIU benefit. And as Bethany laid out, you know, there are numerous pieces of evidence, potentially, that a veteran or a veteran’s advocate might want to submit in support of this case, or his or her case.
And so, really, before applying you may want to discuss your case with a VA disability attorney or accredited representative. Having a representative can help ensure you build the strongest possible case for TDIU. An accredited representative can also assist with the potential appeal if VA denies your initial claim for the benefit.
And so, that’s all we have for you today. We hope that you have found the discussion helpful. For more information on VA individual unemployability and other benefits, please check out our blog or other TDIU- I’m sorry, or other YouTube videos about TDIU or other benefits. Please be sure to subscribe to our channel. Thanks for joining.
