What is TDIU?
Under Total Disability Individual Unemployability or TDIU, the VA pays 100% compensation to veterans who are unable to maintain substantially gainful employment either permanently or temporarily as a result of service-connected disabilities, even if their actual combined rating is less than 100%. Unlike the schedular ratings—which are based on the average effect a particular disability has on one’s earnings capacity in general—TDIU is based on the individual veteran’s particular situation and the extent to which their disability affects their capacity to work.
To be eligible, veterans must generally meet the following schedular requirements: 1) have at least one service-connected disability rated at least at 60% OR 2) have two or more service-connected disabilities with at least one disability ratable at least at 40% or a combined rating of at least 70%. However, veterans with lower ratings may be eligible for TDIU under exceptional circumstances such as, for example, those who require frequent hospitalizations that significantly interfere with their ability to maintain employment.
The VA defines substantial gainful employment as “that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.”1 In contrast, marginal employment, such as odd jobs in which the veteran with no dependents earns less than $12,119 per year, is not considered substantial gainful employment and would therefore not preclude a veteran from receiving TDIU.2 In other words, veterans with no dependents who make over $12,119 per year will generally be deemed to be engaged in substantial gainful employment, which will likely disqualify them from receiving TDIU.
The VA will closely examine each application for TDIU on a case-by-case basis, examining several factors such as the veteran’s employment history and the nature and income of the veteran’s current employment. Veterans should be sure to notify the VA whether they are receiving Social Security Disability benefits because, although not decisive, it is relevant to the VA’s determination whether the veteran can engage in substantial gainful employment.
How to Apply
To apply for TDIU, Veterans may apply online using eBenefits, at the VA regional office or through their accredited representative using the VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Veterans may also request TDIU by writing a letter to the VA. The effective date for benefits is generally the date of the claim or the date the entitlement arose, whichever is later. For more info., visit the VA’s website here.
Importantly, TDIU claims may also be inferred in the original claim for disability benefits or a claim for an increased rating if evidence exists of unemployability and the veteran meets the schedular requirements (see above). This means that the Veteran need not expressly request TDIU; instead, the VA is required to treat original claims or claims for increased compensation as including a TDIU claim where the evidence indicates unemployability. In such cases, the veteran may be eligible for an earlier effective date if they can demonstrate their unemployability began within one year of the filing of the claim for benefits or for an increased rating.3
Due to the complexity of VA laws and regulations and the importance of submitting evidence of unemployability, it is particularly important to seek help from an accredited attorney in order to ensure you receive TDIU benefits to which you may be entitled at the earliest possible effective date.
Please contact the Ban Law Office if you would like assistance with your TDIU application or appeal.
1Adjudication Procedures Manual, M21-1MR, Part VI, subpart ii, 2.F.24.d.
2The VA’s regulations defines marginal employment as “earned annual income that does not exceed the poverty threshold for one person as established by the U.S. Department of Commerce, Bureau of the Census.”38 C.F.R. § 4.16(a). The poverty threshold for individuals under 65 years old was $12,119 in 2013. See Poverty Thresholds, U.S. Census Bureau, available at https://www.census.gov/hhes/www/poverty/data/threshld/. Thus, jobs in which veterans earn roughly less than $12,000 per year will not be considered substantial gainful employment.
3See 38 C.F.R. 3.400(o)(2) (providing that the effective date for an increase in benefits will be the earliest date that is “factually ascertainable” that an increase occurred, so long as it is withing one year of the date of the claim).