JOHN Watson

Brendan Garcia is my attorney for all my VA claims & issues at present and will be always in the future. I Started with a DAV representative, totally useless, then had about 7 different appointments with different so called attorneys that claim that they can handle VA issues.

JOHN Watson
Veteran
JOHN Watson

Brendan Garcia is my attorney for all my VA claims & issues at present and will be always in the future. I Started with a DAV representative, totally useless, then had about 7 different appointments with different so called attorneys that claim that they can handle VA issues.

JOHN Watson
Veteran

About Us

VetLaw is the law firm of choice for veterans in all 50 states. Our main office is located one block from VA’s Regional Office in Winston-Salem, North Carolina. The Winston-Salem office was founded for the sole purpose of representing veterans and their families struggling to obtain VA benefits. Our practice still follows the initial principles set forth by our Founding Attorney, Marine Corps veteran Brendan Garcia.

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A total disability based on individual unemployment rating, or TDIU, allows a veteran to receive maximum compensation from the Department of Veterans Affairs (VA) without having a 100 percent combined disability rating. TDIU disability benefits are awarded to veterans who are unable to work as a result of their service-connected impairments and who have not already received a combined 100 percent disability rating for service-related conditions.

If a former service member can prove that their disabilities prevent them from working, so long as all of those disabilities are directly connected to their active duty service, or service-connected, they may be eligible to receive TDIU. In other words, they must establish that they are unable to maintain substantially gainful employment before VA will award entitlement to TDIU.

Table Of Contents

WHAT IS TDIU?

The stresses of serving in an active-duty military role can create health problems for many veterans. A combination of physical and mental conditions could leave you with reduced mobility, emotional concerns, or a general inability to care for your own needs.

When these conditions become so severe as that they prevent you from working, they may qualify you for a total disability rating based on individual unemployability, which provides monthly payments to veterans as if they were 100 percent disabled under traditional VA disability compensation benefit plans. In this program, the VA examines a veteran’s medical conditions and gathers evidence showing how those medical conditions prevent them from working a full-time job. VA calls this ability to work in a full-time job the ability to maintain substantially gainful employment. It is important to note that VA uses the term “maintain” – if you are easily finding, but then being terminated from employment, you may qualify for this benefit.

WHO CAN APPLY FOR TDIU?

After reviewing medical evidence, the VA will evaluate your medical condition and assign a disability rating. It is critical to ensure that the VA has your most recent medical documentation to receive an accurate assessment. Putting your best case forward from the beginning can result in a better outcome.

Although many veterans believe they must meet the schedular TDIU criterion before applying for TDIU, any former servicemember with at least one service-connected condition can apply. In most cases, the higher combined rating a veteran has for service-connected conditions, the better the chance they have that VA will consider their application favorably; however, there is no minimum rating to request that VA review their service-connected disabilities and make a determination if they are able to maintain substantially gainful employment.

A veteran who qualifies for a total disability rating based on individual unemployability can receive benefits regardless of their assigned disability rating. Normally, to gain these benefits, you must meet two qualifying criteria, the first of which is to have a singular disabling condition that results in a rating of at least 60 percent. Alternatively, you may have two or more conditions with one of them meriting a rating of at least 40 percent and a total rating of 70 percent. However, even if you do not meet these first qualifying criteria you may qualify for TDIU on an extraschedular basis. Contact VetLaw for more information on how to apply for TDIU if you do not meet the baseline criteria.

A VA Disability Lawyer can help with all of your TDIU questions. Schedule a Free Case Review today.

VA DISABILITY RATING FOR TDIU

The zero to 100 percent ratings are assigned in 10 percent intervals for each service-connected condition. Each disability may be rated at zero percent (non-compensable), or anywhere from 10 percent to 100 percent, depending on the severity of the symptoms of that disability.

One important thing to keep in mind, however, is that VA uses a formula to determine a veteran’s overall disability rating. For example, a 30 percent rating and a 20 percent rating generally combine to receive a total rating of 40 percent, rather than the 50 percent that would be awarded if conditions were simply added together.

The disability ratings assigned by VA are part of a very old system called a rating schedule, which was designed many years ago to compensate veterans based on the average loss of earnings a condition has on employment. Even though many of the ratings do not make sense by today’s standards, that is still the way that VA rates disabilities overall. Fortunately, some of the disabilities have recently received updated rating criteria.

Schedular Rating

Qualifying for schedular TDIU disability benefits makes it easier to obtain an award of TDIU compensation. This is because the VA is more likely to approve an applicant who meets the basic minimum requirements for schedular TDIU rather than having to complete certain additional steps.

To qualify for schedular TDIU, a former service member must have either a combination of disabilities that are rated at 70 percent or higher – including at least one condition rated at 40 percent or higher – or one disability that is rated at 60 percent or higher. Of course, a veteran who is already rated at 100 percent would not typically apply for TDIU because they already have a total disability rating.

Extraschedular Rating

An extra-schedular rating is an evaluation awarded outside of the rating schedule due to an unusual manifestation of the particular condition that causes it to interfere more with the individual’s ability to be employed than that condition normally would or results in frequent hospitalization. The additional compensation is intended to replace wage loss resulting from disabilities that unexpectedly render a person unable to perform the tasks needed for his or her job. For example, if you suffered a service-connected ankle injury that has resulted in pain and swelling if you stand for more than 20 minutes even years after the injury occurred, you can ask for extra-schedular consideration as your injury is impairing your ability to work beyond what is contemplated by the rating schedule.

If your VA disability rating is not at the level you think it should be, you do have options. Contact us today to schedule a Free Case Review.

Extraschedular Rating

TDIU APPLICATION PROCESS

You can apply for Total Disability based on Individual Unemployability (TDIU) benefits by filling out a three-page form commonly referred to as the 8940. Officially known as the VA Form 21-8940, this serves as the application for TDIU.

Applying for TDIU benefits requires answering questions about what disabilities are preventing you from working, your work history, medical information like what doctors you have been seeing as well as whether you have been hospitalized, and your level of education. In other words, you must demonstrate why you are unable to maintain substantially gainful employment as a result of your service-connected disabilities.

WHERE CAN VETERANS APPLY FOR TDIU BENEFITS?

Most veterans applying for TDIU benefits have already applied for and received some type of disability compensation from the Department of Veterans Affairs (VA). It is the same type of procedure and may be completed online through VA systems, through a veteran service organization, by going directly to VA, or by requesting assistance from an attorney.

PROVIDING MEDICAL RECORDS

Most of the time, former servicemembers seeking TDIU benefits identify medical providers on the 8940 form and list records that have not already been obtained by VA. If those medical records are at a VA facility, then the agency could obtain those without any additional permission from the veteran. If they are at a private facility, like a doctor’s office, the veteran would also need to fill out a separate form that allows VA to obtain those medical records.

SERVICE-CONNECTION

The disabilities that serve as the basis for obtaining a TDIU rating must be service-connected; conditions that are not related to military service cannot be considered. This is why qualifying for TDIU can oftentimes be more difficult than qualifying for Social Security disability insurance, or SSDI since all disabilities can be considered under that program.

However, since VA allows for secondary service connection as well as direct service connection if a veteran has one disability that causes another, even though the second disability is not directly related to service, entitlement to service connection can also be established for that second disability. Common examples include an ankle injury that later causes a knee or hip injury, or a disease such as Parkinson’s, which often has multiple residuals.

Over the years, those disabilities may get worse, and together they can serve as the basis for a TDIU rating. As noted above, all disabilities considered for TDIU must be service-connected, but it does not matter if they are service-connected on a direct or secondary basis.

PREREQUISITES

A veteran should apply for general disability before they apply for TDIU benefits. While they could apply for both at the same time, it is more unusual to do so. The disability rating that a former service member receives – which could be anywhere from zero percent to 100 percent – serves as the foundation for the award of TDIU, and that rating needs to be in place already or applied for at the same time as TDIU.

In other words, the application for TDIU is part and parcel of the underlying claim for benefits, although the application may be filed at any time. The award of TDIU may be based on one or more service-connected conditions, but a veteran must be rated for at least one condition to be approved.

POTENTIAL CHALLENGES

Some of the issues that commonly delay an initial TDIU decision include not listing an address for an employer or a medical provider or failing to sign the form that allows VA to obtain those records. Veterans should also be sure to keep their contact information up to date with VA, including their phone number and address since VA commonly needs to request additional information during the TDIU determination process.

WHEN CAN I EXPECT TO BEGIN RECEIVING TDIU BENEFITS?

After applying for TDIU, it can take anywhere from two months to a year for a veteran to receive an initial decision. Every case is different, and some are more complex than others. The process is different for every veteran, which is why there is such a disparity between the time-frames for a former servicemember applying for TDIU. It’s also important to note that many TDIU applications are denied, and the appeals process for obtaining TDIU can be lengthy.

Since TDIU is part and parcel of the underlying claim for benefits, a veteran may also choose to file the form for TDIU during an appeal. The time frame for any appeal varies widely, depending on the type of appeal chosen and at what level the appeal is taken.

WHO ARE TDIU BENEFITS SENT TO?

TDIU disability compensation is always sent to the recipient of benefits. It is awarded on a monthly basis and is always sent to the qualifying veteran. The only exception is if the recipient is so disabled that they are deemed incompetent by VA, meaning they are unable to understand their benefits or handle their own financial affairs.

It is a rare, unusual circumstance when a fiduciary is appointed to handle the financial affairs of a former servicemember. A representative payee may be appointed by the government to make sure that the basic needs of the veteran are being covered, that the money is being spent for the benefit of the recipient, and that the beneficiary is not being taken advantage of by somebody if they are unable to understand or comprehend where their money is going or what it is being spent on.

If the veteran deemed to be incompetent is married, VA is likely to appoint their spouse as their fiduciary. The Agency’s goal is to avoid having a stranger come in the mix to handle a former servicemember’s money. If a veteran does not have any family nearby or a spouse, then VA has the option to appoint fiduciaries that are not related. Otherwise, a veteran has full control of how they spend the money. They are not required to spend it in a specific way.

RESTRICTIONS ON HANDLING A VETERAN’S FINANCES

Typically, if a spouse is the fiduciary, they would handle the monthly check that comes in the veteran’s name. However, VA does not give a spouse or family member the same freedom as a former service member would have to spend the money on anything.

A fiduciary, even if it is the veteran’s spouse, must provide reports to VA on how the money is being spent so the Agency can make sure that it is being spent in the veteran’s best interests. Having a family member or loved appointed to handle financial matters does not impact the dollar amount the veteran is receiving in any way.

A veteran who is 100 percent disabled or receiving TDIU is entitled to receive all of their health care from VA at no charge. Health care services, including prescription medications, are provided with no co-pays at this level of disability.

PAPERWORK IN THE MAIL

A former servicemember who has been approved for TDIU would receive a copy of a rating decision in the mail, which formally awards disability benefits. That rating decision would explain the effective date of the award, meaning what date the TDIU was assigned, as well as the dollar amount the veteran will receive. Veterans may appeal the effective date assigned, and since VA often assigns an incorrect effective date, it is a good idea to have an attorney review the decision for accuracy.

The rating decision will also indicate the total amount of back pay or retroactive pay that the former servicemember will receive along with paperwork explaining the necessary appeal rights. The only thing that the veteran would want to appeal at this point would be the effective date assigned for the TDIU, and the paperwork would explain how to do that.

THE ROLE OF SUBSTANTIALLY GAINFUL UNEMPLOYMENT RECEIVING TDIU BENEFITS

To qualify for total disability benefits, a veteran must be unable to maintain substantially gainful employment as a result of their service-connected disabilities. Substantially gainful employment is VA’s convoluted term for determining whether the work a veteran can do meets the standards for receiving entitlement to TDIU. This includes not only how much income a person might receive in a year (and whether that falls under the Census Bureau’s poverty threshold), but also how many hours they might work in a particular week, whether the employer has provided any accommodations, and how long a veteran has held a particular job.

The concept of “maintaining” employment is important because the ability to receive a job offer, or even to begin working, is different from maintaining that job for a reasonable period. This is why there are a lot of factors that VA looks at in terms of what it means to maintain substantially gainful employment. No matter what, it must only be service-connected disabilities that are considered for TDIU; the effect of other disabilities that are not service-connected on maintaining substantially gainful employment is irrelevant.

On a schedular basis, qualifying for TDIU requires either having a combined rating of 70 percent (with one disability rated at 40 percent or higher), or having a single disability rated at 60 percent or higher. If you apply for TDIU but do not meet the schedular criteria, VA will decide whether extraschedular consideration is warranted. However, it is much more difficult to obtain TDIU on an extraschedular basis, as one of the main factors VA considers is the overall disability rating and the combined effects of service-connected conditions.

THE IMPACT OF RESUMING EMPLOYMENT

In the past, VA required all veterans receiving TDIU to fill out an annual form, certifying they had not held a job within the past year. VA has done away with this requirement, because they now have data matching agreements with other federal agencies, including the IRS and the Social Security Administration (SSA). VA will typically be notified if a former servicemember begins to work by virtue of the withheld taxes and reports to the SSA.

It is important to note that veterans receiving TDIU still have the obligation to inform VA if they have been working, especially if that work meets the definition of substantially gainful employment. When VA receives notification from another Federal agency that a veteran has reported wages, they will generally reach out and request more information about that employment. Veterans are given an opportunity to explain more about their situation before VA makes a determination that they want to discontinue TDIU benefits by filing a proposal to decrease benefits.

A veteran can voluntarily discontinue TDIU benefits at any time if they feel they want to begin working. However, veterans should think very carefully about this request and ensure they are able to maintain substantially gainful employment for some time since the reinstatement of TDIU is not automatic if it is discontinued.
Even if TDIU is discontinued, a veteran is still eligible to receive their original, underlying disability rating from VA. If, after a certain amount of time, the veteran decided that their condition has worsened and they are unable to work again, they would have to start the application process over again from scratch with VA.

MY TOTAL DISABILITY INDIVIDUAL UNEMPLOYABILITY (TDIU) CLAIM WAS DENIED

Many applications for Total Disability based on Individual Unemployability (TDIU) are denied because it is much harder to prove that a disability or combination of disabilities prevents a veteran from maintaining substantially gainful employment. Relating debilitating conditions to active duty service is generally easier than proving an inability to work.

Most of the time, the Department of Veterans Affairs (VA) will deny an initial application for TDIU since many applicants do not submit enough evidence to prove they are unable to work. Although VA provides each veteran with the benefit of the doubt on any question of entitlement, obtaining TDIU is one of the most challenging claims to win the first time around.

Fortunately, a TDIU denial lawyer from our team can help you understand the reasons for a rejection from VA and take steps to help you win entitlement to TDIU on appeal. One of our VA-accredited attorneys can assist you by reviewing your evidence, filing a response, and developing the case to give you the best chance of success in obtaining a favorable decision.

Contact us right away to schedule a free consultation if your TDIU benefits have been denied.

THE IMPACT OF PRIOR TDIU DENIALS

Prior TDIU denials matter for a person currently applying for TDIU. The new Appeals Modernization Act (AMA) has made it more difficult to “reopen” or file a supplemental claim for TDIU if a former servicemember has been denied in the past. This does not pertain to somebody who has been denied in the past year and is appealing the decision, as that is part of the appeals process.

A veteran who applied several years ago, failed to file an appeal, and is now attempting to reply for TDIU will have more trouble being approved. Although there is no limit to the number of times that a veteran can apply, under the AMA, new and relevant evidence is now required to file a supplemental claim for TDIU.

The good news is that a lot of things can change in a year’s time. New and relevant evidence may include worsening disabilities, the inability to find suitable employment, or being fired from a job due to your service-connected conditions causing interference with employment.

A TOTAL DISABILITY INDIVIDUAL UNEMPLOYABILITY LAWYER CAN HELP

There are a number of ways that an attorney can assist a veteran who wants to apply for TDIU. It is very important to understand that the foundation for TDIU could be based on either one or multiple service-connected conditions. A VA-accredited legal representative from our firm can review the disabilities that you are already service-connected for, possible rate increases that you may be able to receive to make obtaining TDIU easier, and any pending appeals or claims that should be completed before the TDIU application is filed. Having this insight and understanding would be beneficial prior to applying, so call our team today.

A TOTAL DISABILITY INDIVIDUAL UNEMPLOYABILITY LAWYER CAN HELP

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See What Clients are Saying

Brendan Garcia is my attorney for all my VA claims & issues at present and will be always in the future. I Started with a DAV representative, totally useless, then had about 7 different appointments with different so called attorneys that claim that they can handle VA issues. Unbelievably, they were also useless and unfamiliar with VA procedure, it was... Read More

John

I processed my VA Agent Orange appeal for over 4 years and could not get satisfaction out of the bureaucratic maze. I then contacted Brendan Garcia, who is a former Marine and has, in the past, worked as an attorney for the VA. He knows the ins and outs of the "system " and has been able to get my... Read More

Bill

Being a veteran and choosing to take on the big government beauocracy alone can be a perilous endever. Years ago the rules changed after decades that veterans could not be represented by professional legal counsel. It's like the system was stacked against us veterans who needed to be saavey enough to win claims against the madness that is the Veterans... Read More

David

I have a VA claim that has history going back 50 years. On sending Brendan a quick synopsis of the claim he phoned me very shortly after receiving my information. He without any promises said he would be interested in pursuing my situation. I gathered up a very lengthy file that required a notice to the VA as to whether... Read More

Navy M

Technically, TDIU is different than a 100 percent disability rating. That being said, the compensation for TDIU and 100 percent disability are the same.

In general, the disability rating you have received from the VA will determine how difficult or straightforward getting TDIU benefits will be. Getting TDIU benefits with a schedular rating will be simpler than with an extra-schedular rating.

The VA’s TDIU program can increase your disability compensation benefits to the maximum available level if your condition leaves you unable to maintain full-time employment. These processes examine both your medical conditions and work history to determine whether your condition or conditions are severe enough to warrant total disability individual unemployability benefits.

Our Team Is Eager To Hear About Your Case!

Please fill out the form below, or give us a call, and we will get back to you as soon as possible. The more detail you can provide, the better we can determine if we can help you. (And even if we can’t take your case, we will do our best to offer other options, and point you in the best direction we can!)

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