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7 Myths About TDIU

May 19, 2019
TDIU

Total disability based on individual unemployability (TDIU) is a benefit that allows veterans to be compensated at VA’s 100 percent disability rate, even if their combined schedular disability rating does not equal 100 percent.  TDIU is awarded when veterans are unable to secure or follow substantially gainful employment as a result of their service-connected conditions.  Some common myths regarding TDIU include the following:

1. You are not allowed to work at all if you receive TDIU benefits.

TDIU is generally reserved for veterans who are unable to work.  However, a veteran who can only work in “marginal employment” they may still qualify for TDIU.  This is because VA does not consider marginal employment to be substantially gainful employment.  Marginal employment for TDIU purposes involves when a veteran is working, but their income does not exceed the federal poverty threshold for one person.  If this is the case, then he or she can still be considered for TDIU.  Veterans who are working and earning an income above the set federal poverty level may still be entitled to TDIU if they are working in a protected work environment.  Generally, a protected work environment is one in which the employer makes special and significant accommodations for the veteran without reducing his or her earnings or benefits.  In other words, the veteran is paid the same or similar amount as other employees doing similar work and one or more of the following is true:

  • The veteran is excused from critical functions of their job due to the limitations caused by his or her disability
  • The veteran is less productive than other workers
  • The veteran is less reliable than other workers

Whether a work environment is considered “protected” is established on a facts-found basis, meaning VA will make a judgment on the facts in each individual case.  Two examples of a protected work environment include a family business and a sheltered workshop as these are both job environments in which the veteran may be excused from the standard work requirements.

2. Schedular TDIU under 4.16(a) is the only kind of TDIU available to veterans.

There are two ways to qualify for TDIU under 38 CFR § 4.16: schedular and extraschedular.  Veterans can first qualify for schedular TDIU when the following criteria are met:

  • The veteran has one service-connected disability rated at 60 percent or more; or
  • The veteran has two or more service-connected disabilities with one rated at 40 percent or more, and a combined disability rating of 70 percent or more

The second way to qualify for TDIU is on an extraschedular basis.  Extraschedular TDIU means that a veteran’s service-connected conditions prevent him or her from securing and following substantially gainful employment, but he or she does not meet the above criteria for schedular TDIU.  Importantly, extraschedular TDIU under § 4.16(b) does not have any rating requirement.  If you do not meet the criteria for schedular TDIU, VA will determine if your case should be referred to the Director of Compensation Service for extraschedular consideration.  If your TDIU claim is referred, the Director will look at your case and write an opinion on whether your service-connected condition(s) prevent you 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.

3. TDIU is always a permanent benefit.

TDIU is not automatically permanent, but can be in certain circumstances.  VA does reserve the right to take away your TDIU benefits if it discovers that your condition has improved enough such that you are now able to secure and follow substantially gainful employment.  However, your TDIU rating cannot be reduced unless you have been able to maintain substantially gainful employment for “a period of 12 consecutive months.”  TDIU that is not initially deemed permanent by VA can become permanent in the future.  For example, if you have been in receipt of TDIU benefits for 20 or more consecutive years, or if you are over 70 years old, whichever occurs later, TDIU will be deemed permanent.

4. TDIU and 100 percent schedular ratings are exactly the same.

While the amount of monthly compensation for TDIU is equivalent to that of a 100 percent schedular disability rating, the eligibility requirements are different for each.  Namely, TDIU requires a veteran to show that he or she is unable to secure and maintain substantially gainful employment due to his or her service-connected disabilities.  On the other hand, a 100 percent schedular disability rating does not always directly consider impact on employment.  Instead, a 100 percent schedular disability rating is based on the severity of the veteran’s service-connected conditions as determined by the rating criteria.  There are two ways in which a veteran may be assigned a 100 percent schedular rating:

  • The veteran has one service-connected condition that meets the 100 percent rating criteria specified for that condition; or
  • The veteran has multiple service-connected conditions that results in a combined disability rating of 100 percent.

In general, it is hard to say that the 100 percent schedular rating or TDIU is better than the other, as they both provide VA disability compensation at the highest schedular level.  Nonetheless, depending on your circumstances, one of these options may be more beneficial to pursue.  For example, TDIU allows you to receive compensation at the 100 percent level even if your service-connected conditions do not meet the 100 percent rating criteria.  However, with the 100 percent schedular disability rating, you do not have the same restrictions on work activity that you have with TDIU.  If you are assigned a 100 percent schedular disability rating for your service-connected condition(s), and you are still able to work, then you may do so.

5. You are automatically entitled to TDIU because SSA found you totally disabled.

The Social Security Administration finding you totally disabled does not guarantee that VA will find you eligible for TDIU.  Since the SSA and VA are two different agencies operating under two different sets of standards, each has a specific definition of “total disability” along with its own set of rules for granting benefits.  Despite both being federal agencies, one agency’s decision is not binding on the other.  Some important differences between SSDI benefits and TDIU include the following:

  • Origin of disability. For TDIU, VA only considers how your service-connected conditions impact your ability to work.  For SSDI, the SSA considers all of your conditions, regardless of their origin or cause.
  • For TDIU, VA cannot consider your age when determining your eligibility (see below).  For SSDI, your age is a very important factor in your claim.

However, receiving SSDI benefits could potentially help with your TDIU claim.  VA is required to take SSA’s decisions into consideration if they are related to your service-connected conditions and you make VA aware of them.  Once VA is aware of your SSA records, they must attempt to get those records.  Those records may contain medical opinions or vocational reports from SSA staff that could help support your TDIU claim.  Additionally, if an SSA adjudicator finds that your service-connected condition alone prevents you from working, a VA adjudicator who disagrees must provide an adequate explanation as to why.  Importantly, you can qualify for and receive SSDI and TDIU benefits at the same time, and unlike some other federal benefits, there is no offset.  That is, you can collect the full amount of both SSDI and TDIU at the same time.

6. VA can consider age as a factor when determining TDIU eligibility.

VA is not allowed to consider age when making decisions on claims for 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.”  Even if a veteran has retired long ago, the operative question remains: does the veteran’s service-connected disabilities prevent him or her from working?  Other factors VA can NOT take into consideration when evaluating a veteran for TDIU include:

  • Non-service-connected disabilities. Although veterans may have non-service-connected conditions that prevent them from working, VA cannot take those into consideration when evaluating them for TDIU.  VA should only be evaluating the effect that your service-connected disabilities have on your ability to work.
  • The reason that the veteran stopped working. No matter the reason for leaving a prior occupation, VA cannot consider this information when evaluating a veteran for TDIU.  The focus must remain on the veteran’s service-connected conditions and their impact on his or her ability to work. 

7. Eligibility for TDIU is only based on a veteran’s physical abilities.

On March 14, 2019, the Court of Appeals for Veterans Claims (CAVC) issued a precedential decision in Ray v. Wilkie regarding entitlement to TDIU.  In its decision, the Court outlined certain standards for VA to uphold when adjudicating the issue of TDIU.  Specifically, it clarified the meaning of the phrase “unable to secure and follow substantially gainful employment”.  Here, the phrase in 38 CFR § 4.16(b) has both an “economic” and “noneconomic” component.  Economic refers to the veteran’s ability to earn more than a marginal income as determined by the federal poverty threshold for a single person.  The noneconomic component involves what to assess in determining if a veteran can actually work.  Importantly, the Court did not just list factors based on a veteran’s physical abilities.  Instead, the Court concluded that attention must be given 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, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.

Additionally, in regards to sedentary work, the Court held in another precedential case (Withers v. Wilkie) that if the Board bases its denial of TDIU on the conclusion that a veteran is capable of sedentary work, then it must explain how it interprets that concept in the context of a specific case.  Specifically, the Board must define the meaning of sedentary work and address how it factors into the veteran’s overall disability picture, vocational history, and ability to secure and follow a substantially gainful occupation.

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