Are you a military veteran who can no longer earn a decent living, specifically because a service-connected disability keeps you from doing so? You may qualify for VA unemployability benefits.
These benefits are available under a unique rating where the VA pays 100% of total disability compensation to a veteran who can’t work, and whose service-connected disabilities are not rated as 100-percent disabling. This benefit is officially labeled Total Disability Based on Individual Unemployability (TDIU), often shortened to Individual Unemployability (IU).
The premise is that the veteran’s service-connected disability (or combined disabilities) is the sole factor that prohibits him or her from securing or keeping “substantially gainful employment” after discharge.
VA Unemployability Benefits Are Awarded One of Two Ways
TDIU benefits can pay about $3000 per month and sometimes more. They are granted on either a scheduler (most common) or an extra-schedular basis, as follows.
You cannot work, and you meet the 60-percent or combined 70-percent criteria.
The following requirements are for the scheduler award of TDIU:
- If you have one service-connected disease or injury, it must be rated at 60 percent or more.
- If you have a combination of service-connected disabilities, at least one condition is rated at 40 percent or more, and there is enough additional disability to bring the combined rating to 70 percent or more.
For the one 60-percent disability, or one 40-percent disability in combination, VA states the following situations shall be considered as “one disability” for the purpose of reaching those percentages:
- Disabilities of one or both upper extremities, or of one or both lower extremities. This includes bilateral disabilities (affecting both arms, both legs, or paired skeletal muscles),
- Disabilities resulting from common cause or a single accident,
- Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,
- Multiple injuries incurred in action, or
- Multiple disabilities incurred as a prisoner of war.
You cannot work, and you do not meet the above 60-percent or combined 70-percent criteria.
Sometimes TDIU benefits are granted with a lower disability rating than required. In this case, you may still be eligible for what is called extra-schedular TDIU. You must show evidence that using normal requirements is unreasonable.
The VA applies a 3-step analysis for determining whether an extra-schedular evaluation is appropriate:
- Threshold factor – The VA assesses whether your symptoms are exceptional (meaning, symptoms exist outside of the VA’s rating criteria), or whether the VA rating code addresses the same level of symptoms that you are experiencing. If your symptoms exist outside of the VA’s rating schedule, you qualify for extra-schedular review. (Otherwise, the VA will default to the schedular rating.)
- Does your disability from Step 1 also cause or present significant interruptions with employment or recurrent, ongoing hospitalizations?
- If your exceptional disability meets the first two steps for extra-schedular consideration, the claim is referred to the VA Compensation and Pension Service Director for the decision as to whether you are unemployable due to service-connected disabilities.
Understand Substantially Gainful Employment
For VA unemployability purposes, substantial gainful employment means work that provides an annual income above the federal poverty threshold.
In 2019, that threshold for one person is $12,490.
To meet these terms in your claim, you need to substantiate two things.
- You cannot do your prior occupation or past work.
- You are unable to perform other jobs as they normally would be performed in the national economy.
As you will see, your vocational history and educational background will play a role in this aspect of your claim, and each TDIU claim is unique in this regard.
How Do You Prove Unemployability to the VA?
Step 1 – Establish Service Connection
This is where every VA disability claim begins. To receive any disability compensation for physical or mental impairment, you must establish service connection for that condition.
Step 2 – Show Your Unemployability Is Solely Due to Service-Related Conditions
Proving unemployability is the key to winning TDIU benefits. If you provide sufficient evidence that your current service connected impairments render you unemployable, you could potentially win VA unemployability benefits.
- Are you unable to get a job? If so, you must demonstrate that you are unable to obtain substantial gainful employment due to at least one service-connected condition (and not for any other reason).
- Have you been hired into a job, but due to your service-connected disability you are unable to keep the job? If so, you must prove to the VA that you are unable to maintain substantially gainful employment due solely to one or more service-connected conditions.
6 Tips for Successful TDIU Claims and Appeals
You want to file your initial claim correctly, support the claim with medical and vocational evidence, as well as refute any unfavorable evidence on record that does not support your right to unemployability benefits.
- Submit the proper documents. When you apply for disability compensation, you’ll also fill out additional forms for Individual Unemployability benefits.
- (VA Form 21-8940) A Veteran’s Application for Increased Compensation Based on Unemployability
By completing this form you are claiming “…total disability because of one or more service-connected disabilities which have prevented you from securing or following any substantially gainful occupation.”
- (VA Form 21-4192) A Request for Employment Information in Connection with Claim for Disability Benefits
This form allows VA to access from your employer (1) your employment information, (2) Reserve or National Guard Duty Status, and (3) benefit entitlement or payments that result from employment.
Visit the VA’s page informing about VA Individual Unemployability claims.
- Strengthen your claim or appeal with competent medical statements from your own doctors and any specialists that have treated you, explaining why your disabilities make you unable to sustain gainful work. Often it is the combination of symptoms associated with both physical and mental injuries or illness that create the status of VA unemployability.For example, a veteran who suffered a lower leg amputation may still be able to sit and perform a desk job. But it is another story when you add the physical, psychological, and often hidden or latent disabilities the veteran also suffers, such as anxiety, mood disorders, chronic pain or PTSD.In our work with unemployable veterans, we arrange for qualified physicians (who understand the criteria the VA needs to properly asses a TDIU claim) to review and submit detailed and competent medical evidence into the veteran’s claim.
- Make sure the VA sees the full scope and reality of your limitations. Keep a journal to document how your disabilities impact your day-to-day activities, personal life, and details of how your limitations prevent you from sustaining gainful employment. We also help you gather important lay evidence from family and friends close to you now and those who served with you years ago, to verify and support your service-related disabilities.
- Vocational Assessment: A common reason for denial is when the VA decides you can still work in a sedentary job, and therefore you are not disabled for the purpose of TDIU. A full evaluation of your functional and vocational capacity is paramount in proving you cannot work due to service-connected disabilities.Our veterans’ attorneys arrange for expert vocational evaluations that assess each person’s occupational capacity. The opinion and evidence from vocational experts help demonstrate your inability to maintain gainful employment, as well as your individual unemployability in the local labor market. This is pivotal when refuting a C&P exam doctor’s unsatisfactory VA rating regarding employability, or opinion that you can do sedentary work when in fact, you cannot.
- Work and education history: Your level of education and skills play a part in the comprehensive view of total disability. Any deficiency in either one can limit your capacity to work at a sedentary job. We analyze these factors and also ensure the vocational evaluation fully reflects the impact.
- Submit proof of granted Social Security Disability Insurance benefits to support your claim. The SSA’s disability program is separate and different from the Department of Veterans Affairs disability compensation program. Still, an award of SSDI for the same service-connected disability you are claiming TDIU benefits for can be very supportive to your VA unemployability claim. Here is VA’s rule:
“Although decisions by SSA regarding a Veteran’s unemployability are not controlling for VA determinations, SSA’s record may indicate the level of impairment of the Veteran’s SC disability.”
What is the Difference between a 100% rating and TDIU?
TDIU pays the same as 100% disability. These are significant payments—however, the basis for other VA 100 Percent Disability Ratings are different in that unemployability is not part of the rating decision.
How long does It Take to Get Approved for IU?
Many factors play into the time it takes: your current rating, your claim file, and any past appeals, and other factors unique to your case. With the right evidence, a claim with an already high rating might take months, whereas a new claim for conditions that are not proven service-connected could go on for a year or longer.
I Was Denied TDIU Benefits. Can I Appeal?
Yes – you can challenge the VA’s decision to deny TDIU benefits. You have a one-year window in which to appeal your claim, so it is imperative to take swift action. You want to be represented by veterans’ appeals lawyers who specialize in VA compensation claims and appeals.
If you miss the one-year timeframe, you can re-apply, but you will have lost valuable time. If you do reapply, please contact us to discuss your case. We can help you avoid the pitfalls encountered in your initial application.
TDIU claims are denied all the time, often because most veterans don’t realize that it is hard to get it done right. Winning them depends on the strength of evidence you submit to the VA, and how well that evidence is presented.
Our VA Unemployability Lawyers Are Ready to Help.
Unemployability claims and appeals involve much more that filling out forms and waiting. The TDIU process is a frustrating ordeal for those trying to understand it. Confusion surrounds ratings and who is eligible. Many veterans aren’t sure of the requirements or don’t think they qualify.
VA makes mistakes. Service-connected disabilities of both mind and body can show up in unusual ways that are outside of what the VA rating criteria can parse. We know the resulting symptoms can have a crippling impact on the veteran’s ability to work.
- If you have questions
- If you need to file an initial claim
- If you were denied TDIU benefits
- If you disagree with a low disability rating
Let our accredited veterans attorneys review your case at no cost. We have represented thousands of disabled veterans in their fight for justice within the VA disability system. We are here to give you honest, thorough and reliable answers. If you choose us as your legal team, we will fight for your benefits with all our might.