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Permanent and Total TDIU Benefits | VA Disability Appeal Lawyers

Legally reviewed by Brendan Garcia , Owner and Lead Attorney

TOTAL DISABILITY INDIVIDUAL UNEMPLOYABILITY (TDIU) OVERVIEW

If your service-connected disabilities have progressed to the state that you’re no longer able to work, you may be wondering how you will pay your bills. Fortunately, the VA offers special benefits to unemployable disabled veterans, including TDIU permanent and total benefits.

As veterans ourselves, we know how overwhelming it can be to deal with VA. As VA-accredited lawyers, we’re ready to help our fellow servicemembers receive the benefits they’ve earned. Contact us today to learn more.

What is TDIU?

Total Disability Individual Unemployability (TDIU) benefits are available to veterans who cannot work due to their service-connected condition. VA refers to this as the inability to maintain substantially gainful employment. TDIU is one of several special claims benefits that the VA offers to disabled veterans.

What are TDIU Benefits for Veterans?

Veterans may receive TDIU benefits on a temporary basis or indefinitely. When a veteran cannot return to any type of gainful employment, they may qualify for TDIU with permanent and total benefits.

Some veterans receive TDIU for a limited period of time. They may be temporarily unable to work but then recover and return to work.

However, many veterans will qualify for TDIU permanent and total benefits. Their service-connected disability prevents them from maintaining “substantially gainful employment,” which the VA defines as a steady job that can financially support them with an income above the federal poverty level.

Veterans who receive TDIU permanent and total benefits may still be able to work odd jobs, or certain part-time employment, without losing their compensation. However, it’s important to remember that VA will review all work attempts and annual compensation, and a veteran can still lose eligibility for TDIU even when VA has previously awarded permanent and total status.

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.

TDIU PERMANENT AND TOTAL BENEFITS ELIGIBILITY

A veteran must meet certain eligibility requirements before they can receive TDIU permanent and total benefits:

1. Your inability to work must be caused by a service-connected condition or multiple service-connected conditions. That means you have already been awarded service connection because either:

  • You developed an illness or injury during your military service; or
  • A pre-existing illness or injury worsened during your military service

2. Your service-connected disability or service-connected disabilities must prevent you from working a steady job that would allow you to support yourself, without considering any other disabilities which are not related to your active duty service.

  • This does not necessarily mean that you cannot work at all. Some veterans who receive TDIU permanent and total benefits work part-time at seasonal, odd, or flexible jobs. The VA may consider this type of work “marginal employment.” These jobs can accommodate your disability in ways that a typical, full-time employer cannot.

THE DIFFERENCE BETWEEN TDIU PERMANENT AND TOTAL AND A 100 PERCENT DISABILITY RATING

At first glance, it may seem like the qualifications for schedular TDIU benefits are the same as a 100% disability rating. However, this is not the case. The goal of TDIU permanent and total benefits is to compensate veterans with a lower rating at the same level as veterans who receive 100% disability payments.

To qualify for schedular TDIU benefits, one of the following must be true:

  • You have one service-connected disability rated at 60% or higher; or
  • You have two or more service-connected disabilities, with
    – One disability rated at least 40%, and
    – A combined disability rating of 70% or more

In special cases, if you have a disability rating lower than the above requirements but your service-connected disability or disabilities still prevent you from maintaining substantially gainful employment, you may be approved for TDIU permanent and total benefits on an extraschedular basis. These cases are exceptional in nature and require special review by the Director of Compensation Service. However, it’s important to keep in mind that if the Director of Compensation Service denies extraschedular TDIU, the Board of Veterans Appeals can overturn that decision on appeal.

FOUR WAYS A VA DISABILITY LAWYER CAN HELP

At VetLaw, our VA disability lawyers are all accredited and can help you secure the benefits you may qualify for by:

1. Filing an appeal if your disability or TDIU claim is denied

2. Helping you gather and keep track of the paperwork that the VA requires

3. Keeping track of important deadlines

4. Notifying you of any other VA benefits you may qualify for

Hiring an Attorney to Help with Permanent and Total TDIU

If your service-connected disability has prevented you from sustaining meaningful, steady employment, you may qualify for TDIU benefits. The VA’s rules and regulations are quite complex, and many TDIU claims are regularly denied due to misinterpretations of federal guidelines or insufficient evidence of your disability. If you believe that you are entitled to a higher disability rating under TDIU, or if you were denied permanent and total TDIU benefits, our team of experienced attorneys can help.

Many veterans are underrated for their disabilities and denied the full range of benefits they deserve. At VetLaw, we help veterans navigate the complexities of VA unemployability benefits. Our team will help you take control of the process and submit the strongest case possible to the VA. You served our country, now let us serve you. Schedule your free case review with us today to get started.