VA TDIU Requirements – Understanding How to Qualify

A veteran who is unable to work due to one or more service-connected disabilities may qualify for TDIU benefits. Once granted this status, the veteran receives benefits in accordance with a 100% disability rating, easing the burden of unemployability substantially. Understanding the qualification process and going through the paperwork and eligibility proof can be complicated and time-consuming. The first barrier to receiving TDIU benefits for many veterans is understanding whether they do, in fact, qualify. The VA TDIU requirements are layered and complex, but sorting through them is the first step to getting the necessary and deserved benefits.

What is TDIU?

TDIU stands for Total Disability based on Individual Unemployability. It may also be referred to as simply “individual unemployability.” As the name suggests, the qualification for the benefit is based on the individual’s ability to work a full-time job. This status allows an eligible veteran to receive the maximum benefits even without a 100 percent combined disability rating. In VA terms, the status indicates that the individual has been deemed unable to obtain and maintain “substantially gainful employment” due to one or more service-connected disabilities.

Determining TDIU Eligibility

Qualifying for TDIU is a two-pronged process. First, the veteran must prove that they suffer from a service-connected disability. Then, they must prove that their disability prevents them from maintaining substantially gainful employment. These factors are evaluated based on the evidence provided by the veteran in their application for TDIU benefits.

What Are the Types of Evidence Needed for TDIU?

Your claim for TDIU benefits must be supported by relevant evidence. The evidence that can be used to establish your claim and prove that you fulfill the TDIU requirements can take many forms, including:

• Medical documentation, such as doctors’ opinions, diagnostic tests, records of treatment (including service treatment records), and lab reports. The medical documentation provided in your claim should establish that you have a service-connected disability that prevents you from working and maintaining substantially gainful employment.
• Vocational expert evaluations, which provide additional context regarding your inability to work based on your professional experience, background, and education. At VetLaw, we prioritize vocational evidence because it provides a fuller picture of your limitations that might have been missed in a medical examination. Vocational experts are trained to evaluate work limitations that medical experts may not understand.
• Social Security determinations, which can support your claim of unemployability.
• Lay statements to convey evidence that was not clearly presented in your application. Statements from your spouse, family, coworkers, or employer describing the way your condition impacts your daily life and routine can be helpful.

Does Discharge Status Affect My Entitlement to VA Unemployment Benefits?

Many veterans believe that if they were discharged with anything less than honorable status, they are ineligible for VA benefits. These assumptions may discourage a veteran from applying for benefits. If you received an other-than-honorable discharge or bad conduct discharge, you may still be eligible for certain VA benefits, including TDIU. In these cases, the VA will conduct a special “character of service determination” before moving forward with the claim.

Schedular TDIU Requirements for Eligibility

The VA has outlined specific TDIU requirements that are used to determine whether the status will be granted.

First and foremost, the applicant must be service-connected for one or more disabilities. To qualify for Schedular TDIU, one of the following TDIU requirements must apply:

• The applicant has one service-connected disability rated with a 60% or higher disability rating; or
• The applicant has two or more service-connected disabilities rated with a combined rating of 70% or higher. At least one of the disabilities must have a rating of 40% or higher.

In addition, the applicant must show that they are unable to obtain and maintain “substantially gainful employment.” This term refers to employment that provides adequate financial support and will typically be connected to the poverty threshold. Work that falls below that threshold or odd jobs (which are known as “marginal employment”) does not disqualify someone from receiving TDIU.

Extraschedular Requirements for TDIU Eligibility

While the Schedular TDIU requirements are somewhat complicated, the real complexities of qualifying for TDIU come in with Extraschedular TDIU. In these cases, the service member does not meet the specific disability rating requirements for Schedular TDIU. Many people in this situation incorrectly believe that they cannot qualify for TDIU at all. However, the VA allows for individual analysis of TDIU requirements in order to determine eligibility outside of the normal requirements.

The service member must have at least one service-connected disability. This part is non-negotiable and an eligibility requirement for all types of TDIU. However, if the service-connected disability falls under the 60% threshold but still prevents the service member from obtaining and maintaining “substantially gainful employment,” the service member may still successfully qualify for TDIU.

Proving eligibility for Extraschedular TDIU can be more time-consuming and difficult, but many service members have successfully demonstrated their qualification under these conditions. Frequent hospitalizations that make maintaining stable employment difficult, for example, can help service members demonstrate how they meet TDIU requirements.

Misunderstandings in TDIU Requirements

The most common misunderstandings about qualifying for TDIU happen when service members do not realize that Extraschedular TDIU allows them to apply even if they have not met the disability rating laid out in Schedular TDIU requirements. It’s important to understand that obtaining TDIU is about the impact the service-connected disability has on the service member’s ability to obtain and maintain employment and that individual cases may meet that requirement despite the disability rating.

Another common misunderstanding is that service members cannot qualify for TDIU if they work. The definition of “substantially gainful employment” is subject to interpretation and does not mean that the eligible service member cannot work at all. Employment that does not provide a substantial wage or employment that is marginal does not disqualify a service member from TDIU eligibility.

The most important thing to remember about TDIU is that it is “individual unemployability,” which means that there is a lot of room for interpretation based on the individual’s circumstances. While the process of navigating TDIU requirements, determining eligibility, and applying for the benefits can seem daunting, TDIU benefits have tremendous potential to improve quality of life and access to health care. If you have questions about your eligibility or want to see how a VA benefits attorney can help you, contact us right away for a free case review.

Can You Get TDIU Benefits If You Do Not Meet the Percentage Requirements?

Yes, you can still get TDIU even if you do not meet the percentage requirements set forth in the rating schedule. If the VA’s schedule of ratings does not accurately reflect your degree of disability, it is possible to pursue an extra-schedular rating. The extra-schedular criteria are laid out in 38 C.F.R. § 3.321(b)(1), which requires that you prove that your disability is “exceptional or unusual” due to factors such as frequent hospitalization or persistent interference with work activities.

To get extra-schedular TDIU, you must prove that you struggle with severe symptoms that are not accounted for in the rating schedule. Successfully obtaining extra-schedular TDIU can be incredibly difficult, however, and the VA will look for clear and compelling evidence that your service-connected disability interferes with your ability to live and work. Your attorney will work with you to gather the proper documentation, testimonies, and medical evidence to support your claim.

Is There an Income Verification Requirement to Receive VA TDIU?

To receive VA unemployment benefits, veterans are required to adhere to strict income requirements. The process used to verify income has changed in recent years, and it is important to understand how the VA assesses your employment and wages to ensure that you do not lose your benefits.

Prior to 2019, the VA sent Form 21-4140 on an annual basis, asking veterans to report their employment status within 30 days. After receiving a response, the VA would then determine their action based on the information offered by the veteran. When completing this form, veterans were asked to provide information about their employer, hours worked, and income they earned. Social Security benefits and military retirement pay are not included as earned income in this case.

Now, the VA has attempted to streamline the employment verification process by using data from the Social Security Administration’s wage match. With this system, the VA identifies veterans in receipt of TDIU who have earned above the poverty threshold for the previous year. If you are flagged for earning above the poverty threshold, you will then be sent an employment questionnaire to complete and return to the VA – much like the old process.

Can I Lose My TDIU VA Disability Claim?

Unfortunately, yes, the VA can discontinue your TDIU benefits if it determines that your disability has improved to the point that you can engage in substantially gainful employment. Likewise, the VA may terminate your benefits if it determines that you have obtained these benefits through misrepresentation or dishonesty.

Fortunately, 38 C.F.R. § 3.343(c)(2) offers a key protection to veterans: the VA cannot terminate your TDIU benefits without first determining that you actually secured and maintained substantially gainful employment for twelve consecutive months. This grace period allows veterans to “test the waters” of employment without the fear of losing TDIU.

Why Would the VA Terminate My TDIU?

There are a few reasons why the VA could attempt to terminate your TDIU benefits, with some of the most notable being:

• Improvement of your condition. It is important to acknowledge that the VA does not consider a disability as permanent unless you have had it for 20 years. The VA could propose that you are no longer entitled to TDIU benefits, even if it previously decided that you are totally and permanently disabled. As such, if the VA notices an improvement in your condition, you may lose your TDIU benefits.
• Maintaining gainful employment. One of the key TDIU requirements is the inability to maintain substantially gainful employment. The VA verifies your earned income on a regular basis. If your income is higher than the poverty threshold, it may propose to terminate your TDIU benefits.
• Fraud. As is true for any VA benefit, if you obtained TDIU through fraud, misrepresentation, or dishonestly, your benefits will be terminated, and the VA may refer the matter to the U.S. Attorney’s Office for prosecution. Unreported employment – or working “under the table” – is the most common example of fraud.

What Should I Do If the VA Proposes to Terminate My TDIU?

If the VA proposes to terminate your TDIU benefits, there are options available to fight the decision and protect your benefits. Seeking legal assistance as quickly as possible is important. Your attorney will work to stop the proposal or reinstate TDIU if your benefits have already been terminated.

Before terminating your TDIU, the VA will mail you a letter outlining the reasons for the proposed termination. After receiving this letter, you have 30 days to schedule a personal hearing. This provides a valuable opportunity to veterans to speak directly with the VA and discuss why their benefits should not be discontinued.

Can I Work with TDIU?

One of the most common misconceptions about TDIU is that you are prohibited from working while receiving benefits. While qualifying for TDIU involves proving that you cannot maintain substantially gainful employment, it does not preclude you from working in other forms of employment. You can work with TDIU as long as your work is not considered substantially gainful employment. If your employment is considered marginal, or if your position qualifies as a protected work environment, you can still earn an income while receiving TDIU benefits.

What Types of Jobs Can You Work with TDIU?

Veterans earning additional income often do so by pursuing odd jobs, self-employment, or seasonal work. The gig economy offers options for veterans who want to work and receive TDIU benefits. Ridesharing jobs like Uber or Lyft are common choices, as well as food and grocery delivery. Veterans with expertise in landscaping or home repair may also earn an income by starting their own business. Moreover, while TDIU requirements have an income component, veterans may still pursue work that earns above the poverty threshold if they are employed in a protected work environment.

What Is a Protected Work Environment and How Does it Relate to TDIU?

If your work arrangement meets the definition of a protected work environment, you are free to work full-time and earn an income that is above the poverty threshold while receiving TDIU benefits. If your employer makes adjustments to your role to help you meet the expectations of your job, this may be considered a protected work environment. These adjustments may include accommodations for medical needs, being excused from certain responsibilities, tolerance for reduced productivity, and other flexibilities.

For example, if a veteran works in a position that requires them to occasionally lift and carry heavy objects, but they are excused from doing so due to back pain, this could be considered a protected work environment. Likewise, if a veteran works for a family friend’s business and is provided with unlimited time off to attend medical appointments and is given additional break time due to fatigue, this could also be considered a protected work environment.

What Is the Success Rate for TDIU VA Applications?

Many veterans want to know the success rate for TDIU applications and gain a clearer understanding of how difficult it is to get a TDIU claim approved by the VA. Unfortunately, there is no across-the-board answer to this. Each claim is evaluated on a case-by-case basis, taking into account the unique circumstances of the veteran’s disability, work experience, and military service.

For this reason, we recommend speaking with our team to review the specifics of your claim. Our experienced attorneys can provide you with more clarity based on your unique situation and offer a more detailed and comprehensive understanding of the steps you can take to improve the likelihood of success. Securing VA unemployment benefits is not easy, but our team can help increase your chances of getting the compensation you deserve.

A Total Disability Individual Unemployability Lawyer Can Help

VetLaw has helped many veterans who are unable to work obtain total disability ratings from VA. We are prepared to aggressively advocate on your behalf at any level of the VA claims or appeals process to assist you in obtaining the 100 percent rating.

A designation of individual unemployability allows a veteran to bypass the normal process of obtaining a 100 percent disability rating when chronic unemployability is a reality as a result of a service-connected disability or a combination of multiple service-connected disabilities.

veteransOur law firm is dedicated to helping injured and disabled veterans maximize their benefits by obtaining disability compensation and other benefits from all available sources. Some of our clients collect Social Security Disability benefits (SSD) and/or workers’ compensation benefits in addition to receiving veterans’ benefits. Allow us to review your case for free and determine whether you have a case for obtaining a total disability rating based on individual unemployability due to your inability to work.