Extra-Schedular TDIU Benefits
The VA pays out extra-schedular TDIU benefits to qualifying disabled veterans who cannot work due to their service-connected condition or conditions. If you want to apply for these benefits, you may not know where to start or if you even qualify.
VetLaw is a veteran-owned law firm, and all of our attorneys are accredited by VA. We know what it’s like to serve our country. And, we know firsthand how challenging it can be to return to civilian life. Our lawyers are ready to help you apply for any VA disability benefits you may qualify for, including extra-schedular TDIU. Please contact our office today to learn more.
WHAT IS EXTRA-SCHEDULAR TDIU?
TDIU stands for a “Total Disability rating based on Individual Unemployability.” Extra-schedular TDIU benefits may be available to veterans who do not meet the standard criteria for schedular TDIU, and the award of TDIU may be permanent and total in certain circumstances.
According to the Code of Federal Regulations, extra-schedular ratings may be available to veterans whose “disability is so exceptional or unusual” that it interferes with the ability to hold a steady job or requires frequent hospital stays.
EXTRA-SCHEDULAR TDIU ELIGIBILITY REQUIREMENTS
There are several eligibility requirements that you must meet to qualify for extra-schedular TDIU.
1. You Must Have a Service-Connected Condition or Conditions
A service-connected condition is:
- An illness or injury that was caused by your military service; or
- A pre-existing illness or injury that was exacerbated during your military service; or
- An illness or injury that is secondary to (caused by) another condition which is already service-connected
A service-connected condition can impact your mind and/or body, so both mental health and physical conditions apply.
2. Your Service-Connected Condition or Conditions Makes Substantially Gainful Employment Impossible
The VA defines “substantially gainful employment” as earning enough money to adequately provide for yourself with a steady job that keeps your annual income above the federal poverty level. You may be able to work seasonal or odd jobs and still qualify for extra-schedular TDIU.
3. You Do Not Meet the Standard Eligibility Requirements for Schedular TDIU
To meet the VA’s standard eligibility requirements for TDIU, you must have:
- One service-connected disability that is rated 60% or higher; or
- Two or more service-connected disabilities, with
– One disability rated at least 40%, and
– A combined disability rating of 70% or more; or
If you do not meet these schedular TDIU eligibility requirements, you may qualify for extra-schedular TDIU benefits that still allow you to earn the equivalent of 100% VA disability compensation.
How to Apply for Extra-Schedular TDIU Benefits
Successfully applying and being approved for extra-schedular TDIU benefits can be daunting, and many veterans are unsure of where to start. To apply for extra-schedular benefits, you must first submit a claim and state that the symptoms of your service-connected condition are so severe and unique that they are not contemplated by the traditional rating schedule. Specifically, your claim will include the following:
- VA Form 21-8940, the Veteran’s Application for Increased Compensation Based on Unemployability
- Employment information from the past five years
- Education and training information
- History of wages and earnings
The VA will review your application to determine whether your symptoms exist outside the rating code criteria and decide whether your condition interferes with your ability to work. A three-step inquiry will be conducted to determine if extra-schedular TDIU benefits will be awarded. This analysis framework – which was established in Thun v. Peake – includes the following:
- Comparison of the level of severity and symptomatology of your disability with the criteria established in the rating schedule. If the rating schedule reasonably describes the symptoms of your condition, then an extra-schedular referral is not necessary and the VA will use a schedular rating.
- Demonstration of employment interference and/or frequent hospitalization. For instance, if your back pain limits your ability to sit for longer than an hour or if your PTSD symptoms affect your ability to effectively communicate with coworkers or clients, the VA can reasonably determine that your disability interferes with your employment.
- Determination of whether to assign an extra-schedular disability rating. If the first two prongs are satisfied, then your claim will be referred to the Director of the VA Compensation Service. When making their determination, the Director will consider all relevant factors that have a bearing on your unemployability including your employment history, education, vocational background.
If you believe that your disability rating is insufficient and does not properly represent the severity of your symptoms, our team of attorneys can work with you to build a strong case for your extra-schedular claim. Similarly, if you were denied extra-schedular TDIU, we can help you appeal the decision and successfully secure the benefits you are entitled to.
Can I Appeal an Extra-Schedular Decision?
If you are denied a compensable rating and/or an extra-schedular referral, you can appeal the decision. Under the Appeals Modernization Act, veterans now have one year after receiving a denial for extra-schedular benefits to file an appeal. Generally, it is not recommended to wait the full year before initiating an extra-schedular TDIU appeal, as the VA will not begin working on your appeal until all proper forms and documentation have been filed.
At the same time, it is important to carefully compile and organize relevant evidence to support your appeal. There is a vast range of information that can be collected during that year-long period of time, and veterans have a valuable opportunity to obtain additional proof for their claim. While you may feel motivated to appeal a denied decision as quickly as possible, our attorneys advise taking your time to build the strongest case possible and maximize your chance of success.
At VetLaw, we know just how frustrating it is to receive a disability claim denial. The good news, you have the right to file a disability claim appeal. We can help you with your TDIU appeal, even if we didn’t submit your original benefits claim application.
No VA disability lawyer can guarantee that your extra-schedular TDIU benefits will be approved, but we do know what a strong application looks like, and we know how important supportive documentation is for an extra-schedular rating.
How Do I Appeal an Extra-Schedular TDIU Decision?
When faced with a TDIU denial, there are three appeal options available to you. The option you utilize will depend on the unique circumstances of your case, which your attorney will review before advising you on the right course of action. Based on your situation, your attorney may decide to proceed with one of the following options:
- Supplemental Claim. If the VA determined that your claim lacked sufficient evidence to assign you extra-schedular TDIU status, filing a supplemental claim may be beneficial. In this claim, your attorney will include key documentation needed to prove the severity of your symptoms as well as the connection between your disability and inability to work.
- Higher-Level Review. If you are dissatisfied with the VA’s initial decision but do not wish to provide new evidence to support your claim, a higher-level review may be the right appeal channel. Here, a senior reviewer will take a fresh look and make a decision based on the evidence that is already on file.
- Board Appeal. Using this option, you can request that a Veterans Law Judge reviews your case or request a hearing with the Board of Veterans’ Appeals in Washington, DC.
Fortunately, you can appeal your decision as many times as you need to achieve your desired outcome. However, it is important to note that you cannot file two Board Appeals consecutively. Your attorney will help you navigate the appeal process and select the right option to successfully secure the extra-schedular TDIU benefits you deserve.
How Long Does an Extra-Schedular TDIU Appeal Take?
Despite efforts to improve the system, the appeals process is still incredibly complex and even minor missteps along the way can cause substantial delays. To put this into perspective, the Board has hundreds of thousands of appeals waiting in line for a decision. In general, supplemental claims and higher-level reviews are the quickest appeal options with an average timeline of 4 to 5 months. Requesting a Board Appeal may leave you waiting up to two years for a decision, depending on the nature of the appeal.
How Can an Attorney Help with an Extra-Schedular TDIU Appeal?
Every year, thousands of veterans are denied the disability benefits they need and deserve. Fortunately, you do not need to navigate the appeals process alone. An experienced attorney can advocate for you and help you navigate the extra-schedular TDIU appeals process. Ultimately, the guidance and support provided by an attorney can make all the difference in the outcome of your case.
As a veteran-owned law firm, we understand firsthand the frustration of applying for and being denied TDIU benefits. When your health prevents you from working and accomplishing your day-to-day tasks, navigating the complex system of VA rules, regulations, and deadlines can feel like an unimaginable burden. When you work with our team, we will handle your case so you can focus on what matters.
We take the time to get to know our clients and listen to their stories, then get to work developing a tailored strategy to maximize their chance of securing benefits. When you work with VetLaw, you can expect that we will:
- Work alongside you to ensure that you fully understand the requirements for extra-schedular TDIU and determine if this is the right option for you.
- Identify, compile, and organize all relevant documentation to support your appeal, including buddy statements, vocational expert testimonies, medical records, and any other proof of your unemployability.
- Select the right appeal option based on the unique circumstances of your case.
- File your appeal according to the stringent requirements of the VA.
- Guide you through all stages of the appeals process.
- Prepare you for a hearing in front of a Veterans Law Judge, if necessary.
Many veterans spend years trying to navigate a cycle of appeals and denials before seeking assistance from an attorney. If you cannot work due to a service-connected condition, you are entitled to TDIU. While this truth is simple, the VA system complicates the process. At VetLaw, our appeals lawyers have won extra-schedular TDIU appeals for thousands of veterans across the country. Let us do the same for you.
EXTRA-SCHEDULAR TDIU APPLICATIONS: 3 WAYS A VA DISABILITY LAWYER CAN HELP
At VetLaw, we do more than fill out paperwork. When we meet with veterans to discuss appeals for extra-schedular TDIU benefits, we offer the following services:
1. We’ll let you know about any other VA benefits you may qualify for. The laws are always changing. You may now be eligible for certain benefits, even if you weren’t in the past.
2. Our lawyers will help you gather documentation that supports your inability to work at a steady job. That often includes a “buddy statement” from those closest to you. The formal name for a buddy letter is Statement in Support of Claim. This form can be filled out by not just fellow servicemembers, but friends, your spouse, religious clergy, and former employers.
3. Extra-schedular TDIU benefits are typically granted at the discretion of the Director of Compensation Service or their delegate. We’ll make sure your TDIU appeal demonstrates that, despite not meeting the standard TDIU criteria, your service-connected condition still prevents you from maintaining gainful employment. It’s also important to keep in mind that even if the Director denies the application, a judge at the Board of Veterans Appeals can overturn that finding.
At VetLaw, we are veterans helping other veterans. If your claim is denied, our VA-accredited attorneys are here to help you with the appeal process.
We’re ready to help you pursue extra-schedular TDIU benefits, so contact us today for a free case review.
