As veterans’ benefits lawyers, we represent TDIU claims on behalf of disabled veterans who cannot work. Many military men and women go overseas with hopes and plans for their futures and careers. Yet too many come home vastly changed.
Due to injuries, exposures and diseases sustained during active service, countless veterans return home with no ability to work at all—not only in their desired career path but in in any gainful job.
Know this: when your service-connected (SC) disabilities prevent you from working, one path to getting the equivalent of a 100% schedular disability rating is called Total Disability Individual Unemployability (TDIU).
The VA rating schedule “as-is” does not fully reflect the “individual unemployability” component. Accordingly, the Department of Veterans Affairs has set up a special, additional rating for these veterans who cannot work because of their service-connected disabilities, as per 38 CFR 4.16.
You will also hear this unique type of VA disability compensation referred to by its shortened forms, individual unemployability (IU) or VA unemployability.
TDIU Claim FAQs
Proving TDIU is very difficult. A TDIU claim must demonstrate the severity of your impairments and how they prevent you from earning a living. An award of TDIU often comes down to the sufficiency (or insufficiency) of the evidence you give to the VA.
In this post, we answer the five most often-asked questions we get about TDIU claims and benefits:
- What are the VA’s criteria for TDIU eligibility?
- What is my TDIU effective date?
- Will I get back pay for TDIU?
- Are TDIU and SSDI connected (can SSDI affect my TDIU claim)?
- How long does VA individual unemployability last?
Cover these bases in your application for TDIU benefits, and you will develop a much stronger claim. Still, be cautioned that your claim is unique, and these FAQs as presented are general. For dedicated help with your TDIU claim, please reach out to our firm without delay.
Also, don’t miss our in-depth post on how to win VA unemployability (TDIU) benefits.
1) What are the VA’s criteria for TDIU eligibility?
TDIU is a total disability rating based on a veteran’s individual unemployability. When your VA schedular rating is less than 100%, but you can demonstrate that your service-connected impairments obstruct you from getting or maintaining gainful employment, you may be entitled to VA disability compensation at the 100% rate.
Therefore, in order to claim TDIU benefits:
- You must be a recipient of service-connected compensation disability benefits. Of those SC disabilities, you must meet the following minimum requirements (known as schedular TDIU):
- One disabling condition is rated at least a 60 percent disability rating, or
- You have two or more disabilities with one rated at least 40 percent and the combined rating for both adding up to at least 70 percent.
- There are cases where your ratings are lower than the above minimums, but you may still qualify for TDIU benefits. Sometimes cases are so “exceptional” or “unusual” that the regular rating method used by the VA is insufficient. These cases are known as extra-schedular and require VA to consider various other aspects particular to your case, including your work history, education, periods of hospitalization and your SC disabilities.
- You have medical or vocational proof that your service-connected disability is the factor that precludes you from keeping and earning an adequate living.
- You may also have a claim for increased VA ratings.
2) What Is My TDIU Effective Date?
This is the date on which your award of TDIU benefits will start. Establishing the effective date of your TDIU claim can be difficult, and is often a sticking point. This is due to the nature of TDIU benefits.
Veterans can apply for TDIU benefits by submitting VA Form 21-8940. If you have submitted this form to the VA, you might think the TDIU effective date is associated with that form. But this is not correct. Why? Because your TDIU is all about an additional VA rating that will pay 100% compensation for an already-service-connected condition. It is not a separate claim for compensation.
“Individual unemployability” is often at the very root of a veteran’s claim for VA compensation. Unemployability can also become evident over time in a service-connected condition. Accordingly, your effective date—the date on which you become unemployable—may be determined by:
- the date VA received your initial claim for service connection, or
- the date you first became unemployable due to service-connected disabilities
- the date of your claim to increase a VA rating, or
- from facts that exist in your record that is under adjudication.
We explain various scenarios below.
TDIU Effective Date Stems from Claim for Service Connection:
In this case, the first step is to work out the date whereon VA initially obtained some form of proof showing you were unemployable. Examples of proof could be a doctor’s statement or medical records regarding the specific SC condition, as well as lay statements or previous employer statements.
The next step is to know the status of your disability at the time VA received this evidence. It is likely VA got information about your unemployability when you filed your claim for service-connected disability compensation. VA would have made a decision whether or not to award service connection. In this case, the effective date for an award of TDIU benefits would likely be the later of the following two dates:
(a) the date VA received your claim for SC (assuming service-connection was granted), or
(b) the date you were first determined to be unemployable.
TDIU Effective Date Stems from Claim for Increased VA Rating:
If evidence of your unemployability first went before the VA when you filed for an increased disability rating, the TDIU effective date would likely be the later of the following two dates:
(a) The date VA received your claim for rating increase, or
(b) The date you were first determined to be unemployable due to your SC disability ratings.
You want the earliest date allowable. As you will see, this becomes especially important when it comes to TDIU back pay. Getting this right will impact the dollar amount of retroactive TDIU benefits you will receive.
Our attorneys never assume the TDIU date proposed by VA is correct; we will scrutinize the facts from all angles to protect your maximum benefits.
3) Will I Get Back Pay for TDIU?
Once you submit your Individual Unemployability claim, it can take months or years before your claim is resolved. If VA grants the TDIU rating, what about all that time you were waiting and received no benefits at all? This can add up to many thousands of dollars.
VA does reimburse this and the payment is referred to as TDIU back pay, or retroactive pay. Usually, the VA pays this as a lump sum. The number one thing you need to do is make sure VA dated this back pay amount correctly.
The correct date the TDIU retroactive payments should begin is the effective date and not the date you applied for benefits. Remember, the effective date is the date you were found to first be unemployable. The difference can be years before you ever filed your application to VA.
4) Are TDIU and SSDI connected (can SSDI affect my TDIU claim?)
You might be awarded SSDI benefits before receiving TDIU benefits. This gives rise to a common misconception about TDIU and Social Security Disability – that if you are awarded SSDI benefits, you automatically qualify for a TDIU rating.
This is not true. Social Security Disability and Veterans Disability Compensation operate independently from one another. SSDI awards do not automatically prove entitlement to TDIU.
Many claims that are awarded SSDI by the SSA are denied by the VA for TDIU and vice versa. This applies even when both claims are based on the same service-connected impairments.
A Social Security Disability award, along with its supporting evidence, can certainly help demonstrate the strength of your TDIU claim. But SSDI is based on total disability; you must be totally disabled (not partially disabled) before you can receive SSDI payouts.
As a veteran, you are eligible for benefits if you are partially disabled. The VA rating system (including TDIU) is based on percentages, where each SC condition has a percentage rating. These individual ratings are tallied using a complex formula to reach an overall VA disability rating.
5) How long does VA individual unemployability last?
TDIU benefits can be awarded as permanent or temporary, and those statuses can change. Each case is unique.
Award of Permanent TDIU (or simply “IU”):
Individual unemployability benefits can be set forth by the VA as permanent at the time benefits are granted. When VA awards TDIU benefits (100% disability) on a permanent basis, this is shown in your rating decision. You can look for one of the following on your Rating Decision:
- There is a “Permanent & Total” (P&T) box on your Rating Decision form and it is checked
- The form states “no future exams are scheduled”
- Permanent status is explained and clarified within the actual Rating Decision.
VA Can Reduce or Terminate TDIU Benefits:
If VA finds your disabling conditions have improved to the point that you can perform substantial gainful employment, VA has the authority to terminate TDIU benefits.
A reduced TDIU rating is possible if the VA finds that you are able to sustain substantially gainful employment for 12 consecutive months. (This rule does not apply to veterans who are working in what is known as a protected work environment.)
TDIU that Is Not Initially Permanent Can Become Permanent:
If VA grants you an individual unemployability rating that is not permanent at the outset, it is possible for the rating to become permanent if one of the following holds true:
- You have received TDIU benefits for 20 years or more, consecutively; or
- You are 70 years old or older.
Separate from the above, you can officially request VA to make your TDIU rating permanent. This requires submitting detailed medical and other evidence demonstrating why your condition is not expected to improve.
Talk to Our Veterans Attorneys about Your TDIU Claim
These are critical questions that the VA often gets wrong, and still there are many more to consider. We know the struggles that veterans face in their fight to obtain benefits, and claims for TDIU benefits can be especially difficult.
Our veterans’ attorneys have the resources and abilities to handle your TDIU claim with meticulous care and urgency. We can help protect you from reductions in benefits and assist with all Social Security Disability benefit matters. If VA owes you TDIU retroactive pay, or you need help appealing an unfair denial, we are your strongest ally.
For exceptional assistance obtaining TDIU ratings, quickly contact us for the legal help you deserve. We serve veterans across the United States. (800) 562-9830.