Permanent and Total TDIU Benefits | VA Disability Appeal Lawyers

Is TDIU Permanent?

While the VA cannot take away your TDIU benefits without justification, it is within their right to require you to have periodic medical examinations to assess whether TDIU is warranted. Typically, this happens when the VA believes that there is room for your condition to improve.

However, the VA does grant permanent and total TDIU in some cases, which will be indicated in your rating decision. The VA can indicate that your TDIU is permanent and total in a few ways, so be sure to check your decision letter carefully for language suggesting that no further examinations are required.

Can My TDIU Benefits be Terminated or Reduced?

If your TDIU is not permanent and total, it is important to understand that the VA can reduce or rescind your benefits in certain circumstances, including:

• There is a change in your ability to sustain substantially gainful employment. In other words, your condition has improved, and you are now able to secure and sustain a job.
• The VA issues an improvement to your disability rating. For example, if your service-connected disability was rated 70% but changed to 40%, you may lose your TDIU benefits.

For the purposes of TDIU, a veteran’s disability rating cannot be reduced unless they have been able to sustain substantially gainful employment for a period of twelve consecutive months. This rule, however, does not apply to veterans who are working in a protected work environment.

Additionally, the VA is required to give notification and go through a review process if they plan to reduce your TDIU benefits. In the event that the VA wishes to issue a new disability rating decision or request that you be re-examined to determine your level of disability, you will have 60 days to provide evidence that your condition has not improved.

Can TDIU Become Permanent and Total?

Yes, it is possible for TDIU benefits to become permanent and total. For example, if you were awarded TDIU based on benefits that were considered static in nature, requiring a future exam, the VA will re-evaluate your impairments after a specified period of time. If the disability persists and prevents you from going back to work, you may qualify for permanent and total TDIU. If your condition is worsening, you may benefit from scheduling a C&P examination to prove permanence.

When Does TDIU Become Permanent?

TDIU will become permanent after certain thresholds have been met. Specifically, Temporary TDIU benefits become permanent once you are 70 years or older or have received TDIU benefits for 20 consecutive years. After twenty years, a service-connected disability rating is considered continuous and cannot be rated below the original level.

Can I Work with Permanent TDIU?

Since TDIU is intended to compensate veterans whose disabilities prevent them from sustaining employment, many people initially believe they cannot work with permanent and total TDIU. In certain circumstances, however, it is possible to earn an income while receiving TDIU benefits. The “substantially gainful employment” aspect of TDIU becomes important here, and the VA will still grant TDIU to veterans who can engage in “marginal employment.”

What Is Substantially Gainful Employment?

Substantially gainful employment is vaguely defined by the VA as any employment that provides the veteran with more than a marginal income and involves doing significant physical or mental activities. The VA specifies that substantially gainful employment is ordinarily followed by nondisabled people to earn a living. Substantially gainful employment is one of the most important factors the VA considers when determining a veteran’s unemployability. In some cases, a veteran’s statement is enough to establish unemployability. In other situations, additional evidence is required from past and prospective employers.

What Is Marginal Employment?

Marginal employment is differentiated from substantially gainful employment in 38 C.F.R. § 4.16(a), which states that marginal employment is a situation in which the veteran’s income does not exceed the poverty threshold for one person. Seasonal or temporary employment and odd jobs typically qualify as marginal employment under this definition.

The VA also designates other employment that may be protected, even if the veteran earns above the poverty threshold. These include:

• Working in a sheltered workshop. This can be confusing for veterans because sheltered workshops are not well defined by VA regulations. A workplace may be considered sheltered employment if the employer is aware of your disability and provides the accommodations necessary to help you continue working. This may include working for a family business or for a friend, for example.
• Self-employment, if there is notable decrease in productivity and earnings.
• Being employed in a job that is typical for older or disabled workers.

The concept of marginal employment is tricky, and the VA will look for a range of evidence proving that you cannot earn income above the poverty threshold or engage otherwise substantially gainful employment. The VA may consider your prior work history and earnings, the established wages for a type of job in your community, and/or the available opportunities for employment in your community. Claims are assessed on a case-by-case basis, and your VetLaw attorney can help you put together the strongest claim to ensure that you can continue working while receiving permanent TDIU benefits.