What are the TDIU requirements?
VA TDIU or Total Disability based on Individual Unemployability is a benefit that the Department of Veterans Affairs will pay when a veteran’s service-connected compensation does not add up to 100%, but those conditions are still severe enough to keep the veteran from working.
In other words, TDIU is a way to fix VA math that doesn’t compensate disabled vets at 100% when they are actually unable to engage in gainful activity.
Who meets the TDIU requirements?
Any veteran with impairments that are related to service and receiving compensation for those impairments can be considered for a total disability award based on individual unemployability. In all cases, the veteran has to be unable to engage in gainful work as a result of those service-connected conditions.
Most veterans will qualify based on meeting the “schedular” requirements. Those requirements are met when a veteran has one disability that is rated at at least 60% or a combination of disabilities that are rated at 70% combined as long as at least one condition is rated at 40% or more.
If a veteran does not meet these rating requirements, they can still pursue TDIU benefits, but they will be evaluated for “extra-schedular” consideration. This means the claim is reviewed to see if it is so exceptional or unusual that applying the normal rules would be impractical.
How Can a Veteran Win a Claim by meeting the TDIU Requirements?
To actually prove the TDIU requirements, a veteran needs to meet the schedular or extra-schedular requirements above, and show that solely as a result of their service-connected disabilities they are unable to engage in substantially gainful work. This means that the veteran can’t actually be working when pursuing this benefit, and it also means that the inability to work is due solely to impairments related to service.
In essence, it means there are two distinct parts to a claim for TDIU:
- That the veteran has disabilities that are related to service and are severe enough to interfere with work, usually by meeting the schedular requirements for a single or combined rating;
- That the veteran is unable to work at a gainful level as a result of those disabilities.
If a veteran can show both, then they can win a claim for TDIU.
What can an attorney do to help with a claim for TDIU?
It depends on the attorney. If you are working with a skilled disability attorney, you gain the advantage of someone with experience in the second prong. Not all VA attorneys also handle a range of disability insurance and Social Security claims. That experience helps in developing the medical and vocational support to show that a veteran’s service-connected conditions prevent gainful work.
An attorney can help you document your impairments personally and medically, and frame your conditions in terms relevant to the ability to work. For example, a veteran with a lumbar spine injury may think primarily about difficulty walking and standing for long periods of times, or trouble lifting heavy things. But, those limitations would not necessarily eliminate desk work. Pain, on the other hand, or the side effects of medication may reduce the ability to keep a schedule, or require a tolerance for absences or decreased productivity that would eliminate even easier desk jobs.
A veterans disability attorney can help develop the evidence that will quantify these limitations, analyze the occupational base, and work with doctors to develop an action plan to meet the requirements to win a TDIU claim.
Should you get help filing for TDIU benefits?
In order to apply for TDIU benefits, two forms are usually needed: a Form 21-8940 Veteran’s Application for Compensation Based on Unemployability, and often a Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits.
The first form is completed by the veteran, and the second by the veteran’s most recent employer.
Getting help from a disability attorney can be important especially since an application for TDIU may be considered an appeal if filed within one year of the most recent rating decision awarding compensation. Why? Because an application for TDIU is a theory of increase. In other words, rather than a free-standing application for benefits, saying that you meet the TDIU requirements is a way of saying that you believe the percentage you are being paid is not correct.
If that’s the case and you are considering filing for TDIU within a year of the last decision on your claim then getting it right might mean that you are entitled to a retroactive increase going back as long as:
- You’ve continuously pursued your claim, and
- The evidence supports the increase based on the inability to work.
Unfortunately, the VA frequently gets this wrong and so, at least consulting with a VA disability attorney with a focus on meeting the TDIU requirements can be critical to prepare the claim as an appeal and to be set up to fight the VA’s attempt to grant the claim as of the date they received the form rather than linking it to a timely appeal.
At Bross Frankel, even if we don’t think you need us yet, we’ll review your case and any claims you’re looking to file and will always take the time to give you the best advice we can. When it makes sense to get help, we’ll tell you and explain where we can make a difference.