Am I Still Eligible for TDIU If I’m Currently Working?
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, then you may still qualify for TDIU on an extraschedular basis.
Qualifying for TDIU
To qualify for schedular TDIU, the veteran needs to meet VA’s rating percentage criteria, in addition to proving that they are unable to maintain substantially gainful employment. Under VA regulation 38 CFR 4.16(a), the veteran must either:
- Have one service-connected condition rated 60 percent or higher; or
- Have at least two service-connected disabilities, one of which is rated at least 40 percent disabling, with a combined rating of at least 70 percent.
Extraschedular TDIU is a form of TDIU in certain cases where the severity of a veteran’s condition is not sufficiently reflected in the rating schedule.
Under 38 CFR § 3.321(b)(1), veterans must display an “exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards.”
In other words, this indicates that the veteran’s disability is of such a unique nature that the typical disability rating schedule is insufficient in accurately capturing the level to which the disability restricts their ability to function.
What Are the Criteria for TDIU Eligibility?
#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. Veterans can still qualify for TDIU if their income is marginal or working in a protected work environment.
#2: Service-Connected Disability 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.
As mentioned above, 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, to qualify for schedular TDIU.
If you do not qualify per the rating criteria in §4.16(a), then you can request TDIU on an extraschedular basis as outlined in §4.16(b).
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.
Employment That May Allow You to Qualify for TDIU
Marginal employment: If you earn above the poverty level from your employment, then according to VA, your employment is substantially gainful. If you are working but earning below the poverty level, then VA considers this employment “marginal,” which does not qualify as substantially gainful.
For example, if you are only able to work 10 hours per week at a coffee shop and thus earn below the poverty threshold, then your employment may qualify as marginal.
Working in a protected work environment: If you work in a protected work environment, then VA may still consider you to be eligible for TDIU. VA reviews such arrangements on a case-by-case basis. Generally, employment that allows significant accommodations, without which you would not be able to continue working, does not fall under the umbrella of substantially gainful employment.
More specifically, a protected work environment could be demonstrated by one or several of the following being true of the veteran’s situation:
- The veteran does not need to complete critical job functions due to their limitations (e.g., attending meetings).
- The veteran is not as productive or as reliable as other employees (e.g., Truck drivers at Company A must make 10 deliveries a week. A veteran hired at Company A only needs to make five deliveries because of their disabilities).
- The veteran does not receive any negative consequences for erratic behavior or mistakes that stem from the veteran’s disability (e.g., A veteran’s traumatic brain injury causes them to forget directions. They forget to deliver important documents to a client, but their employer does not penalize them).
To establish that you work in a protected work environment, you may need several types of evidence, such as a statement from your employer or your W2s or paystubs.
Can I Be Self-Employed and Still Receive TDIU Benefits?
For veterans who are self-employed and have disabilities connected to their service, VA uses the same standard to assess eligibility for TDIU as it does for all other veterans.
VA considers the veteran’s annual income to decide if they earn more than the poverty threshold and may also consider the nature of their employment when making its decision.
How to Get an Accredited Representative to Help with a TDIU Claim
If you are appealing a VA decision that denies your claim for TDIU benefits, the accredited representatives at Chisholm Chisholm & Kilpatrick may be able to help.
Our team has decades of experience in veterans’ law, helping veterans win the benefits they deserve. Call our office today at (800) 544-9144 for a free case evaluation with a member of our team.
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