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Veterans Law

TDIU Claims: The Complete Picture

March 13, 2018

What is TDIU?

Total disability based on individual unemployability (TDIU) is a disability benefit that allows for veterans to be compensated at VA’s 100% disability rate, even if their combined schedular rating does not equal 100%. TDIU is awarded in circumstances in which veterans are unable to secure or follow substantially gainful employment due to their service-connected disabilities. TDIU can provides a substantial financial benefit for those whose schedular ratings do not combine to 100%; for example, there is currently about a $1,200 compensation gap between a 90% rating and a 100% rating.

How do I get TDIU?

The VA outlines TDIU regulations under 38 CFR 4.16, which encompasses subsection (a) and (b). Each subsection describes a way by which veterans may meet the requirements for TDIU. In order to qualify for TDIU under 38 CFR 4.16(a), a veteran must have:

  • One disability rated at 60% or more; OR
  • Two or more disabilities, one of which is rated at least 40% disabling, with a combined rating of at least 70%.

Keep in mind that your disability ratings are not simply added together to determine your combined rating.  VA uses a specific formula to combine disability ratings.   If you know your individual ratings, try using our VA disability calculator to determine your combined rating.

If a veteran has multiple service-connected conditions, there are five ways they can be combined to reach the qualifying 60% or 40% for TDIU. Under 38 CFR 4.16(a), the following circumstances can be combined and considered as one disability for the purposes of TDIU:

  1. If you have a disability of one or both of your upper extremities, OR one or both of your lower extremities, those disabilities can be combined into one rating in order to reach the aforementioned 60% or 40% rating to qualify for TDIU.
  2. If your disabilities stem from “common etiology or a single accident.” For example, multiple disabilities incurred from a single explosion during service can be combined into one rating.
  3. Disabilities that affect a single body system, for example multiple service-connected disabilities impacting the respiratory system, can be combined into one rating.
  4. If you incurred a number of injuries in action, those injuries can be combined into a single rating.
  5. Former prisoners of war who incurred multiple disabilities during their time in captivity may combine those disabilities into one rating.

Those who do not meet the schedular requirements under 38 CFR 4.16(a) may still be considered for TDIU under 4.16(b). Under this subsection, VA must refer your entitlement to TDIU to the Director of Compensation Service for extraschedular consideration. This evaluation process is different than that of 4.16(a), under which an adjudicator, regional office, or the Board can grant entitlement to TDIU.

How do I apply for TDIU, and what will my effective date be?

To apply for TDIU, the VA requires that veterans complete form. The purpose of this form is to provide VA with additional information about the veteran, such as his or  level of education and employment history, to supplement the request for TDIU.

It is important to note that VA must assume each veteran is seeking the highest disability rating possible upon applying for benefits. Often times when the VA grants TDIU, they will assign your effective date as the date you submitted your form 21-8940 rather than when you actually became entitled to TDIU. If you are granted individual unemployability, establishing the proper effective date can result in a substantially higher retroactive award of benefits.

How do you prove TDIU claims?

In order to adequately demonstrate entitlement to TDIU, you must show that your service-connected disabilities prevent, or have prevented, you from acquiring and/or maintaining substantially gainful employment. Aside from filing a 21-8940, submitting statements to the VA explaining your service-connected disabilities, the impact they have on your daily functioning, and describing how they inhibit your ability to work can be a very effective way of showing your entitlement to TDIU. You, as well as your friends, family, co-workers, or previous supervisors can submit statements in support of your claim.  In addition to lay evidence (e.g. statements), opinions from medical and vocational experts can be quite beneficial to an appeal. For our clients’ appeals, we often submit vocational expert reports that detail the impact of the Veteran’s service-connected disabilities on his or her ability to acquire or maintain substantially gainful employment. These opinions can be a powerful tool to contradict unfavorable evidence contained in the record, such as a compensation and pension (C&P) exam that does not support entitlement to TDIU. This is because our expert opinions usually provide a more thorough analysis of the Veteran’s disability than the “check-the-box” style of a C&P exam.

Marginal employment

TDIU is generally reserved for veterans who are unable to work, however, if a veteran is able to maintain ”marginal employment” they can still qualify for individual unemployability. This is because VA does not consider marginal employment to be substantially gainful. There are two ways for a veteran’s employment to be considered marginal for the purposes of TDIU:

  1. If a veteran is working, but their income does not exceed the federal poverty threshold for one person, they can still be considered for TDIU.
  2. 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. An example of a protected work environment would be a family business in which special accommodations are made that allow the veteran to work there. These special accommodations would be considered unreasonable if the veteran were working for another employer (e.g. the need for frequent breaks). This type of work is considered marginal because the veteran would otherwise not be able to acquire or maintain this job without such accommodations in a competitive work environment.

What can VA NOT take into consideration when evaluating a veteran for TDIU?

There are certain things the VA can NOT take into account when evaluating them for individual unemployability:

  • Non-service connected disabilities. Although a veteran may have a non-service connected condition that prevents them from working, the VA cannot take that disability into consideration when evaluating them for TDIU; the VA should only be evaluating the effect that your service-connected disabilities have on your ability to work.
  • Age. For the same reason VA cannot consider non-service connected disabilities, age cannot be taken into account when evaluating a veteran for individual unemployability. Even if the veteran has retired long ago, the operative question remains: does the veteran’s service-connected disabilities prevent them from working?
  • 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 disabilities, and their impact on the veteran’s ability to work.

What is the difference between 100% schedular ratings, TDIU, and “permanent and total” disability?

Total Disability based on Individual Unemployability (TDIU) is a benefit reserved for veterans whose disabilities do not combine to 100%, but who are deemed unable to acquire or maintain a gainful occupation; these veterans are compensated at an amount equal to a 100% disability rating.

100% Schedular Ratings are assigned to veterans whose disabilities combine to 100%, and are therefore, paid at the 100% rate. These combined ratings are not simply added together to yield a disability rating. 100% schedular ratings are calculated using VA math.

Permanent and Total (P&T) disability ratings are assigned for service connected disability(s) if the condition is totally disabling and not expected to improve. Those assigned a P&T disability rating will not have to undergo future reevaluations from the VA.