Total Disability based on Individual Unemployability (TDIU)

Total Disability based on Individual Unemployability

Total Disability based on Individual Unemployability is a benefit offered by the Department of Veterans Affairs that allows disabled veterans who are unable to work due to a service-connected disability(ies) to receive disability compensation equal to a 100 percent rating, even if their combined disability rating does not reach a schedular 100 percent.

Veterans unable to obtain and maintain “substantially gainful” employment due to service-connected conditions can qualify for Individual Unemployability benefits. A “substantially gainful” occupation is a job that pays above the poverty threshold. Under some circumstances, veterans may qualify even if they are working a job that pays above this income threshold.

Who is Eligible for Individual Unemployability Benefits?

Any veteran with an other-than-dishonorable discharge who is unable to get or keep a substantially gainful occupation due to a service-connected disability can qualify for Individual Unemployability benefits from VA. Any service-connected mental or physical impairment can qualify a veteran for individual unemployability benefits.  Veterans may qualify for Individual Unemployability on a schedular or extraschedular basis.

The schedular requirements for Individual Unemployability are as follows:

  • The veteran has one service-connected disability rated at least 60 percent disabling; OR
  • The veteran has more than one service-connected disability, with one condition rated at least 40 percent, and a combined rating of at least 70 percent.

What If I Don’t Meet Schedular Individual Unemployability Requirements?

Veterans who do not meet the schedular criteria for individual unemployability may qualify for these benefits on an extraschedular basis if they can demonstrate that the VA disability rating schedule does not accurately portray the functional limitations presented by the their condition.

What is the Benefit Amount of Individual Unemployability?

Individual Unemployability benefits are paid at a rate equivalent to a 100 percent disability rating, which is $3,057.13 per month for a single veteran as of 2019. Veterans may receive additional monthly compensation for a spouse or dependent children. See our VA disability pay chart for more rates.

disabled veteran individual unemployability in wheelchair against american flag background

Am I Eligible for Individual Unemployability If I’m Currently Working?

Individual unemployability benefits are reserved for veterans whose service-connected disabilities prevent them from obtaining and maintaining substantially gainful employment. Two situations exist in which veterans may be employed and still qualify for individual unemployability benefits:

  • Marginal Employment. Veterans who are currently working but earn below the federal poverty threshold may qualify for individual unemployability benefits.
  • Protected Work Environment. When special accommodations are made by an employer that allow a veteran to work there with no reduction in pay or benefits, it is called a protected work environment. Veterans employed in a protected work environment may still qualify for individual unemployability benefits from VA.

How do I apply for VA Individual Unemployability benefits?

To apply for Total Disability based on Individual Unemployability benefits, veterans must complete VA Form 21-8940: Veteran’s Application Based on Unemployability and submit it to VA. This submission can be done online, mailed, faxed, completed in person at a local Regional Office, or with the assistance of VA -accredited representative. For more information, see our post: How to Apply for 100% VA Unemployability?

What type of evidence do I need to prove entitlement to Individual Unemployability?

To help prove entitlement to individual unemployability benefits, veterans can submit evidence such as Social Security determinations, medical records, lay evidence, medical opinions, vocational assessments, and more.

When can VA reduce or terminate my unemployability benefits?

VA may propose to reduce or terminate a veteran’s Individual Unemployability benefits for a number of reasons:

  • Veterans in receipt of TDIU benefits are required to submit VA Form 21-4140 annually. If veterans do not submit this form, their benefits may be subject to reduction or termination;
  • If your ability to maintain substantially gainful employment changes and you are able to work;
  • If your service-connected condition(s) have improved, warranting a lower rating.

Can VA consider age as a factor when determining Individual Unemployability eligibility?

No, VA is not allowed to consider age when making decisions on claims for TDIU benefits. 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?

Are VA Individual Unemployability benefits permanent?

Individual Unemployability is not automaticall permanent, but can be in certain circumstances.  If your IU benefits are permanent, VA will indicate that in your Rating Decision in one of three ways: (1) a box will be checked indicating that your 100 percent disability is permanent; (2) language such as “eligibility to Dependents Chapter 35 DEA are established,” as these benefits are reserved for dependents of veterans who are permanently and totally disabled; (3) if your Rating Decision says “no future exams are scheduled,” your rating is permanent.

Can I collect Individual Unemployability benefits and Social Security benefits at the same time?

Yes, veterans can collect both SSDI and TDIU benefits simultaneously with no offset. Keep in mind that each program has different requirements, and approval for one benefit does not guarantee entitlement to the other.

How do I apply for Individual Unemployability?

There are three ways in which veterans can apply for Individual Unemployability benefits:

  1.  Online using the eBenefits portal on VA’s website;
  2.  At their local regional office with the assistance of a VA employee;
  3.  With the help of a Veteran Service Organization (VSO), legal representative, or an accredited VA claims agent.

Each of these options requires the veteran to complete VA Form 21-8940: Veteran’s Application for Increased Compensation Based on Unemployability.

What if my VA Individual Unemployability Benefits Claim has been Denied?

If your claim for Total Disability based on Individual Unemployability has been denied, you can appeal VA’s decision. Keep in mind that veterans have one year to appeal a denied claim before the decision becomes final. If you choose to appeal, it may be helpful to seek assistance from an experienced VA individual unemployability attorney or accredited representative.

How much does a VA Individual Unemployability Attorney Cost?

The VA individual unemployability attorneys at Chisholm Chisholm & Kilpatrick work on a contingency fee basis, meaning there is no cost to the veteran unless we win retroactive benefits for you from VA, otherwise known as back pay. VA disability attorneys cannot charge veterans more than 33% of retroactive benefits plus added expenses such as outside experts.

Contact the Individual Unemployability Lawyers at Chisholm Chisholm & Kilpatrick Today

If your claim for total disability based on individual unemployability benefits has been denied, the experienced team of individual unemployability attorneys at Chisholm Chisholm & Kilpatrick may be able to help. We take pride in fighting for the benefits you deserve. Contact our office for a free consultation at 800-544-9144.

 

Client Testimonials

“I am a Vietnam vet. I was exposed to Agent Orange in Vietnam. I have many physical problems treated by the VA hospital for years. By the year 2001 I was no longer able to work. The VA over time would only give me a 60% disability. I kept trying to get a higher percentage but could not for 17 years. Chisholm Chisholm & Kilpatrick offered to help me, and in a short time due to them I received a 100% disability with backpay. Thank you.”

“Chisholm Chisholm Kilpatrick LTD has represented us since we were turned down for T.D.I.U. at the B.V.A. Our claim went all the way to Court. The court remanded the case back to the R.O. for T.D.I.U., our attorneys appealed there denial back to the B.V.A. We filed for T.D.I.U. in 2007. We got our favorable decision in 2014 and was awarded T.D.I.U. but only went back to 2009. We were awarded more than $83,000. Chisholm + Chisholm + Kilpatrick L.T.D. filed an appealed for T.D.I.U. from 2007 to 2009 we got a favorable decision in 2017 and awarded $104,948. I would highly recommend this law firm. They went above my expectations, and kept us informed at every step. Job well done!”

“I was fighting for my VA disability compensation for 10 years. I was ready to give up and then CCK took my case. I immediately felt at ease because they kept me informed every step of the way and there was so much less stress for me. Thanks to CCK I am now receiving TDIU benefits and I am very thankful.”