Myths About Individual Unemployability (TDIU)
CCK Law: Our Vital Role in Veterans Law
Since 1999, Chisholm Chisholm & Kilpatrick LTD (CCK) has worked on thousands of successful cases for veterans seeking Total Disability Based on Individual Unemployability (TDIU). In this blog, we will discuss the most common misconceptions that our lawyers and advocates have encountered about TDIU claims.
To refresh, a finding of TDIU allows VA to compensate veterans at VA’s 100 percent disability rate even when a veteran’s combined schedular rating does not equal 100 percent.
TDIU is awarded in circumstances in which veterans are “unable to secure and follow substantially gainful employment” as a result of their service-connected conditions.
VA defines substantially gainful employment in its Adjudications Manual as “employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupations in the community where the veteran resides.” A veteran’s annual income potential must meet or exceed the federal poverty threshold.
MYTH: “The Only Way to Qualify for TDIU is Specific Rating Percentages”
There are actually two ways to qualify for TDIU: schedular and extraschedular.
Schedular TDIU uses the rating percentages described in 38 CFR § 4.16(a):
- One service-connected condition rated at 60% or higher; or
- Two or more service-connected conditions, one of which is rated at 40% or higher, with a combined rating of 70% or higher.
However, veterans who do not meet the schedular requirements may still be considered for extraschedular TDIU, described in 38 CFR § 4.16(b).
Extraschedular TDIU does not have any underlying rating requirement. Instead, a veteran must show, and VA must agree, that a veteran’s conditions interfere with employment in a way that is not considered by the rating criteria.
At that point, VA will refer the veteran’s case to the Director of Compensation Service for extraschedular consideration. The Director will look at the veteran’s case and write an opinion as to whether service-connected condition(s) prevent the veteran from securing and following substantially gainful employment. VA will then agree or disagree with the Director’s opinion to either grant or deny TDIU on an extraschedular basis.
Extraschedular TDIU is more flexible but can be extremely challenging for a veteran to argue.
MYTH: “Veterans Can’t Collect Social Security Disability and TDIU Benefits at the Same Time”
Certain government programs have rules against “double-dipping,” or receiving benefits for the same conditions from multiple programs simultaneously. Receiving both Social Security Disability Insurance (SSDI) and VA disability benefits does not count as double-dipping. Veterans can receive both SSDI and VA disability benefits at the same time.
Note that SSDI is different from Supplemental Security Income (SSI), which is needs-based. VA benefits will reduce SSI benefits but not SSDI benefits.
MYTH: “If the SSA Says a Veteran Is Totally Disabled, Then They Are Automatically Eligible for TDIU Benefits”
This is incorrect. The Social Security Administration (SSA) and VA are two different adjudicatory systems, and they are separately administrated. Each has separate definitions of what renders an individual totally disabled. Therefore, veterans will not automatically receive TDIU benefits if they are receiving SSDI benefits.
However, receiving SSDI benefits could still potentially help with veterans’ TDIU claims. VA is required to take SSA’s decisions into consideration if they are related to a veteran’s service-connected condition(s).
If a veteran makes VA aware of the SSA’s decision, VA must attempt to obtain those records. Such records may contain medical opinions or vocational reports from SSA staff that could help support claims for TDIU benefits.
Additionally, if an SSA adjudicator finds that a veteran’s service-connected condition alone prevents them from working, then a VA adjudicator who disagrees must provide an adequate explanation as to why.
MYTH: “VA Can’t Reduce or Terminate a Veteran’s Individual Unemployability Rating”
TDIU is not technically a permanent benefit unless VA also determines that the veteran’s condition is permanent and total (P&T). TDIU is not automatically P&T but can be in certain circumstances.
If a veteran’s TDIU benefits are permanent, then VA should indicate that in the Rating Decision in one of three ways:
- A box will be checked indicating that their 100 percent disability is permanent;
- Language such as “eligibility to Dependents Chapter 35 DEA are established,” (because these benefits are reserved for dependents of veterans who are permanently and totally disabled); or
- If the VA Rating Decision says “no future exams scheduled,” then their TDIU benefits are permanent.
While uncommon, VA may reduce TDIU benefits for a number of reasons, including the following:
- A veteran fails to submit VA Form 21-4140, Employment Questionnaire when requested by VA (2024 update: Note that VA previously requested Form 21-4140 on an annual basis, but now generally requests the form only when it has indication of substantially gainful employment, such as from Social Security Administration data);
- The veteran’s ability to sustain substantially gainful employment changes (e.g., their service-connected condition improves and they are able to get a job);
- VA finds that a veteran is working in a substantially gainful occupation despite receiving VA benefits; or
- An improvement in the VA disability rating for one or more of a veteran’s conditions (e.g., the condition improves and the veteran’s combined disability rating goes from 70% to 50%, thereby dropping below the rating requirements under § 4.16(a)).
MYTH: “Veterans Can’t Work While Receiving TDIU Benefits”
There are certain circumstances in which VA can still grant TDIU status to a veteran who continues to work.
One example is if a veteran is working in a marginal capacity (or “marginal employment”). This means that they are making less than the federally established poverty threshold, approximately $15,000 as of 2024.
In this situation, VA cannot consider their employment gainful, and as a result, the veteran can still be granted TDIU. Importantly, VA must determine that the veteran is limited to marginal employment due to their service-connected conditions.
Another situation where veterans may be able to maintain TDIU status even while working is if their employment is only possible because it is in a “protected work environment.”
VA’s regulation does not define what a protected work environment is; it simply provides examples (e.g., family business, sheltered workshop). But a protected work environment appears to be one where an employer excuses the veteran from critical requirements due to their service-connected conditions.
For example, an employer doesn’t penalize the veteran for being less productive or reliable than other employees or for behavioral issues or mistakes that would get other employees fired or reprimanded. Also, despite providing beyond reasonable accommodations, an employer may be paying the veteran like other employees. Protective work environments like this suggest that, if not for those accommodations, the veteran would not be able to work. Therefore, VA may grant the veteran entitlement to TDIU.
MYTH: “Veterans Must File a Separate Claim for VA TDIU Benefits”
VA is required to assume that a veteran is seeking the highest possible rating for their service-connected condition, including TDIU.
This means that if a disabled veteran is seeking an increased rating for a service-connected condition, and there is evidence suggesting that they cannot work due to that condition, then VA is supposed to consider entitlement to TDIU as a reasonably raised issue.
That being said, veterans should always plan to submit VA Form 21-8940: Veteran’s Application for Increased Compensation Based on Unemployability (the formal application for TDIU). In addition to ensuring VA considers TDIU, this form provides information that might not be included in the veteran’s claims file.
MYTH: “VA Can Consider Age as a Factor When Determining TDIU Eligibility”
VA is not allowed to consider age when making any claims decisions, including TDIU.
Its regulation regarding age and TDIU under 38 CFR § 4.19 is as follows:
“Age may not be considered a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. Age, as such, is a factor only in evaluations of disability not resulting from service, i.e., for the purposes of pension.”
MYTH: “Physical Limitations Are the Only Way to Show Unemployability”
On March 14, 2019, CCK won an important case defining the standards for substantially gainful employment. In Ray v. Wilkie, the Court of Appeals for Veterans Claims (CAVC) outlined certain guidelines for VA to follow when adjudicating the issue of TDIU, in particular regarding the phrase in 38 CFR § 4.16(b), “unable to secure and follow substantially gainful employment.”
This phrase has both an “economic” and “noneconomic” component. Economic refers to the veteran’s ability to earn more than a marginal income. The noneconomic component involves what to assess in determining if a veteran can actually work.
In assessing whether a veteran can actually work, the Court listed factors besides a veteran’s physical abilities. The Court concluded that VA must give attention to the following:
- Veteran’s history and education, skills, and training;
- Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue—including limitations on lifting, bending, sitting, standing, walking, etc., and auditory/visual limitations; and
- Whether the veteran has the mental ability to perform the activities required by the occupation at issue—including limitations on memory, concentration, ability to adapt to change, handling workplace stress, getting along with coworkers, and demonstrating reliability and productivity.
Withers v. Wilkie was another precedential case about sedentary work that CCK appealed before the Court of Appeals for Veterans Claims. In Withers, CCK was able to convince the CAVC to hold that if the Board bases its denial of TDIU on the conclusion that a veteran is capable of sedentary work, then the Board must explain using the facts of the specific case.
For example, the Board must consider the veteran’s overall disability picture, vocational history, and ability to “secure and follow a substantially gainful occupation.”
Conclusion
TDIU is a powerful option for veterans whose service-connected disabilities have kept them from finding employment. Unfortunately, TDIU is a complex topic.
For nearly three decades, Chisholm Chisholm & Kilpatrick has been at the forefront of efforts to force VA to better define the rules around TDIU and help veterans in challenging circumstances. If you still have questions or would like a free case evaluation of your case, please reach out to CCK today to see if we can help.
