Total Disability Based on Individual Unemployability (TDIU) has specific criteria you must meet to qualify. You are eligible for TDIU on a schedular basis if you are unable to obtain or maintain substantially gainful employment and have a service-connected disability(s) that meets certain percentage requirements. If your service-connected disabilities render you unemployable, but you do not meet the percentage requirements, you may still qualify for TDIU on an extraschedular basis.
Criterion #1: Incapable of Obtaining and Maintaining Substantially Gainful Employment
The first requirement for TDIU is that, due to your service-connected condition, you are incapable of securing and maintaining substantially gainful employment. The U.S. Department of Veterans Affairs (VA) defines substantially gainful employment in its M21-1MR manual as, “employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” When making this assessment, VA looks at the veteran’s annual income to determine if the veteran meets or exceeds the national poverty threshold.
Are There Any Situations Where I Can Work And Still Qualify?
It is possible in some circumstances for a veteran to be working and still be eligible for TDIU if the employment is “marginal.” Per VA regulation §4.16(a), marginal employment is deemed to be when annual income does not exceed the national poverty threshold as determined by the U.S. Department of Commerce, Bureau of the Census. VA may also determine a veteran’s employment to be marginal on a facts-found basis, even if his or her annual income exceeds the poverty threshold. For example, employment at a friend or family member’s business with substantial accommodations could be an example of marginal employment.
Can I Be Self-Employed and Still Receive TDIU Benefits?
For self-employed veterans with service-connected disabilities, VA applies the same standard in determining TDIU eligibility as it does for all other veterans. VA looks at annual income to determine whether the veteran earns above the poverty threshold, and potentially looks at the conditions of employment in making its decision.
Criterion #2: Service-Connected Disability Rating Percentage Requirements
In addition to demonstrating the inability to secure and follow substantially gainful employment, VA has set forth rating criteria for TDIU eligibility. VA’s regulation Total Disability Ratings For Compensation Based on Unemployability of the Individual, found at 38 CFR 4.16, outlines the eligibility requirements for TDIU.
Under §4.16(a), a veteran must have a service-connected condition with a rating of at least 60 percent; or, multiple service-connected conditions with a combined rating of at least 70 percent including one condition with a rating of 40 percent or more.
If you do not qualify per the rating criteria in §4.16(a), you can request TDIU on an extraschedular basis as outlined in §4.16(b). VA will consider TDIU on an extraschedular basis in situations in which veterans do not meet the percentage requirements for TDIU, but whose service-connected disabilities keep them from obtaining and maintaining substantially gainful employment.
For a Free VA Disability Case Evaluation with CCK, Call 800-544-9144
Receiving a grant of TDIU benefits can be difficult and often requires a significant amount of compelling evidence and thorough development of the veteran’s claims file. If you have been denied TDIU, the veterans lawyers at Chisholm Chisholm & Kilpatrick LTD can help you appeal that denial. We offer a free case evaluation to all veterans to determine if we may be able to assist you. Call our office today at 800-544-9144.« Return to the Veterans' Resource Center
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