Total Disability Based on Individual Unemployability (TDIU) is a VA benefit that allows veterans to receive benefits at the 100% rate if their service-connected disabilities prevent them from obtaining and maintaining substantially gainful employment.
Schedular vs. Extraschedular TDIU
There are two ways to qualify for TDIU under the VA’s regulation for TDIU, 38 C.F.R. 4.16: schedular and extraschedular.
There are two ways to qualify for schedular TDIU:
- The veteran has one service-connected disability rated at 60% or more.
- The veteran has two or more disabilities with one disability rated at 40% or more, with a combined rating of 70% or more.
Under this regulation, there are multiple ways to meet the requirement that one disability be rated at 60% in the first criteria, or the 40% in the second criteria. Disabilities can be combined in order to reach those percentage requirements through one or more of the following ways:
- The veteran has disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor.
- Their disabilities result from a common etiology or a single accident (e.g. a car crash in service).
- The disabilities affect a single body system, such as the digestive or respiratory system.
- The disabilities are considered to be injuries incurred in action.
- The disabilities were incurred as a prisoner of war.
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 either of the criteria for schedular TDIU. Extraschedular TDIU does not have any rating requirement.
The main difference in the process of being considered for schedular and extraschedular TDIU is that if a veteran does not meet the criteria for schedular TDIU, their case will be referred to the Director for Compensation Service for extraschedular consideration. The Director will look at the veteran’s case and write an opinion. The opinion will decide whether or not the veteran’s conditions prevent them from securing and following substantially gainful employment. If a veteran receives an unfavorable opinion from the Director, it is not the end of the road. A veteran advocate or attorney can argue against the Director’s opinion if it is inadequate.
Can I Work and Receive TDIU?
It depends. The VA specifies that entitlement to TDIU is determined by whether the veteran can secure and follow substantially gainful employment. The VA does not define the term substantially gainful employment, but the Courts have determined that a veteran’s employment is substantially gainful if it provides an annual income above the federal poverty threshold. If the veteran’s earnings are below the poverty threshold, their employment is considered marginal, and they may still be considered eligible for TDIU.
If a veteran is working and their income is above the poverty threshold, they may still qualify for TDIU if they work in what is called a protected work environment. A protected work environment can include working in a family business or sheltered workshop.