Military service requires certain sacrifices. Whether giving up time with loved ones or personal safety, all veterans have made sacrifices for their country. When the results of those sacrifices jeopardize a veteran’s ability to work, however, it can be difficult to pay the bills and put food on the table. That’s why the Department of Veterans Affairs offers Total Disability Individual Unemployability (TDIU) benefits for disabled veterans (38 C.F.R. § 4.16).
Unfortunately, the process for applying for such benefits can be time-consuming. The TDIU requirements include having evidence of service-connected disabilities and proof that the veteran is unable to work. Applying for benefits can feel overwhelming, but connecting with a VA benefits attorney who has extensive knowledge in TDIU benefits can make the process simpler.
Requirements for TDIU
Generally, only those who are unable to maintain gainful employment can qualify for TDIU benefits. That means anyone currently employed and earning a salary above the poverty line will struggle to meet the VA’s standards (38 C.F.R. § 4.16 B). Odd jobs, however, may not necessarily count against a disabled veteran if you are earning below the poverty level. Veterans currently working full-time who believe they may soon be unable to continue their job should be proactive. Collecting negative performance reviews, letters from colleagues, and timesheets showing how much time is being taken off from work because of their disability are a good way to arm oneself with evidence.
It’s important to keep in mind that only service-connected injuries and ailments will be considered in determining if a veteran is entitled to TDIU. Pre-existing conditions or post-service injuries that prevent a person from working will not suffice. The service-connected injuries can be primary or secondary. For example, if a person suffers a blow to the head in combat and develops a traumatic brain injury, they may initially seem fine. If seizures and debilitating headaches develop as a side effect of that injury and the veteran is able to get them service-connected, the veteran may qualify for TDIU. To apply for TDIU benefits, veterans are required to fill out VA Form 21-8940.
Veterans currently out of work or those who have been unemployed for years may find that they qualify for TDIU almost immediately. To qualify, one disability must be rated at an overall of 70% or higher. However, in some instances, a veteran can have lower than 70% and still qualify. There are two ways in which a person may prove they are entitled to TDIU: schedular and extra-schedular.
Schedular TDIU
There are special rules for determining the aforementioned disability rating. This is important to understand, as a veteran with just one service-connected disability must be rated 60 percent or higher in order to receive TDIU benefits. Veterans with multiple service-connected disabilities must have a combined rating of 70 percent or more, with at least one disability rating above 40 percent. Defining what “one disability” means isn’t as easy as you might expect. The VA says disabilities on one or both upper extremities count as a single disability. Disabilities that impact an entire system within the body, like the circulatory system, for example, are also considered a single disability.
With this in mind, veterans can proceed to the second step of qualifying for TDIU benefits. The VA will analyze a person’s career to determine if they are able to maintain gainful employment given their service-connected disabilities. This is a subjective process and one highly dependent upon a veteran’s background. Evidence is crucially important for this step, as it can make or break a person’s case. A person’s employment history, educational background, and vocational training can all be taken into consideration.
Extra-schedular Consideration
When veterans do not meet the disability rating requirements mentioned above, they may still be awarded TDIU benefits on an extra-schedular basis. In order to grant such benefits, the VA must have unique evidence that shows the veteran cannot work due to the veteran’s service-connected disability. What unique evidence applies in such cases?
Social security disability benefits can help prove to the VA that a person is in need of TDIU benefits. While not enough on their own to indicate a veteran’s need for TDIU, social security benefits can be used as supporting evidence for the TDIU claim.
Frequent hospitalizations can also warrant extra-schedular consideration. Even if a person’s disabilities are not rated high enough to warrant TDIU benefits, frequent hospitalization can prevent them from holding down a steady job. Evidence of hospitalizations can help a veteran’s case for TDIU benefits. Even a person’s educational background can help provide context for the VA to make exceptions to their usual rules.
Extra-schedular TDIU cases can be difficult to win, but there are veterans who have had success with their claims. The above examples of unique evidence are far from the only kinds of proof that a person can no longer work because of their disabilities. An attorney can help veterans understand which option for pursuing TDIU benefits is right for them.
If you feel overwhelmed or unsure about where you stand regarding TDIU eligibility, consider reaching out to Veterans Law Group. By requesting a free consultation, you set the wheels of justice in motion. Schedule your appointment as soon as possible.
