Is a TDIU Rating Permanent (for the rest of my life)?
The only constant in life is change. Soldiers are trained to be prepared for the unexpected, and to adapt to changing circumstances on a moment’s notice. Upon return to civilian life, especially when dealing with the effects of injury or trauma from your military service, you are hoping for more predictability. Predictability in disability payments and the ability (or inability) to work are high on the list.
If a veteran meets the criteria to be rated at a 100% disability TDIU rating (total disability individual unemployability), its useful to know if that is a permanent, lifetime decision, or whether the rating can be revoked if the veteran gets a job.
This is an important concern for both the veteran struggling to deal with their disability and also wanting to work, if possible, to do whatever is necessary to support their family.
The short answer is that a TDIU rating is not permanent, but it only gets taken away when facts and circumstances warrant such a change. This article will provide a recap of what TDIU is and how that rating decision is made, then walk you through the details of when and how a TDIU rating could be changed.
What is TDIU?
TDIU means “total disability individual unemployability” within the framework of VA disability benefits. In layman’s terms, that means that the veteran has been deemed to have a service-connected disability sufficiently severe that it renders them unable to maintain substantially gainful employment. It does not mean that you cannot do anything at all, or that a veteran is being relegated to a rocking chair on their front porch for life, it just means that the ability to maintain regular and gainful employment over the course of time is substantially impacted.
TDIU benefits are financial disability payments above those that would ordinarily by paid by the VA according to percentage disability ratings.
How to Get TDIU?
TDIU ratings can be awarded as part of the VA disability benefits process. The VA generally refers to a claim as a TDIU claim when two conditions are met: (1) the veteran has one service-connected disability with a 60% or more disability rating, or has two or more service-connected disabilities with a combined rating of 70% or more, and (2) there is medical evidence of unemployability.
If the veteran satisfies these two conditions, then he will be entitled to a 100% disability rating.
A second method of reaching the same TDIU result is called an “extra-schedular rating.” An extra-schedular rating applies to veterans who are unemployable due to their service-connected disability(ies), but whose disability(ies) does not meet the percentage requirements previously discussed.
Medical evidence of unemployability refers to medical findings of conditions or symptoms that would tend to interfere with the maintenance of regular, full-time employment. Examples could be ongoing panic attacks, social anxiety, frequent emotional outbursts as a result of PTSD, etc.
Can the VA Reduce TDIU Benefits?
Yes, a TDIU rating can be taken away, but only if the VA determines that the veteran is able to maintain sustained gainful employment. Just having a part-time, low income, job doesn’t meet that threshold. Working in a protected environment that makes accommodations that couldn’t ordinarily be expected in that type of job also doesn’t necessarily act to disqualify a veteran from receiving TDIU benefits.
Substantially gainful employment is “employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Those following substantially gainful employment earn a yearly income above the federal poverty threshold.
For the purposes of TDIU, a veteran’s rating cannot be reduced unless they have been able to maintain substantially gainful employment for “a period of 12 consecutive months” unless the employment is in a protected work environment.
The federal poverty threshold is published every year by the U.S. Department of Commerce, Bureau of the Census. These thresholds are published every year. For 2020, the amount for one person is $12,760 (slightly higher for Alaska and Hawaii), and higher for families with dependents. If you don’t know what your (or your spouse’s) annual income is, an Earnings Report can be requested from the Social Security Administration. Income under this level is considered “marginal employment” and should not result in a change of a TDIU rating.
Marginal employment may also be held to exist when earned annual income exceeds the poverty threshold, but the employment is in a protected environment, such as a family business or sheltered workshop, that makes work accommodations for the veteran that would not otherwise be available.
How Does the VA Decide To Reduce TDIU Benefits?
The VA’s process for ongoing evaluation of TDIU rating changed as of February 2019.
Under the old process, a veteran receiving TDIU had to submit an Employment Questionnaire (Form 21-4140) every year. The form inquired whether the veteran was working and, if so, where, when, and how much income is being earned. Failure to provide these yearly updates within the designated timeframe would cause cancellation of TDIU.
However, that process has changed. The VA implemented a new process for employment verification as of February 2019. With this new process the VA uses a data wage match with the Social Security Administration to identify Veterans in receipt of TDIU who have also been working and paying into social security. Upon this match, the VA will then send out VA Form 21-4140 Employment Questionnaire, and a due process letter to the veteran. This letter must be responded to within the timeframe set forth in the letter.
The veteran’s earned wages do not automatically exclude the veteran from TDIU eligibility. Instead the VA reviews all facts and circumstances prior to rendering a decision on the TDIU continuing eligibility.
If you can work, keep in mind that you need to balance TDIU benefits only versus a job. Look at the dollar amount difference between the current benefit level and 100% and see if that would be more than how much you veteran could make at work. Everyone’s condition and circumstances are unique.
How important are independent medical examination reports to TDIU rating claims?
The VA Disability Benefits System describes itself as non-adversarial, even claimant-friendly. While this may be the case in theory, in practicality, disabled veterans need to be proactive in protecting their interests and in advocating for their rights.
As a general rule, veterans should not rely upon the VA to protect their interests. This means that, instead of waiting for the VA to obtain valuable evidence, veterans should obtain this evidence on their own. It also means that veterans should always try to obtain a favorable medical report from their private physicians rather than rely upon the VA to obtain a medical report from one of its physicians.
One of the most important strategies for winning your claim at the VA is to be sure to obtain additional medical opinion evidence to support your claim. This is particularly true with respect to a TDIU rating request.
The VA has a battery of physicians at its disposal to evaluate a veteran’s physical and mental condition, but in the opinion of many who routinely review these reports, VA physicians tend to favor the government and not be supportive of a veteran’s claims.
A veteran needs an evaluation from someone who doesn’t have this divided loyalty, and may need a medical opinion that more carefully details matters needed for supporting the veterans claim. For example, a veteran might need a letter from his or her doctor providing an opinion on employability distinguishing between service-connected disability and a non-service-connected disability. Perhaps the veteran has a back injury (not service-connected) and also PTSD (service-connected). If the doctor concludes that the veteran is unemployable as a result of the PTSD issue, irrespective of any problems that could be caused by the back injury, that would be useful for the TDIU rating determination. Such careful determinations and supporting documentation are unlikely to emanate from a VA physician.
While the VA has unlimited resources to obtain negative medical evidence, most veterans, on the other hand, are barely lucky enough just to pay for basic living expenses, let alone pay for costly medical examination opinions. It is no wonder that many veterans end up losing their claims because of negative VA medical opinion evidence and think there is nothing left to do. That is why the Veterans Law Group can be of great assistance to veterans.
In most claims, VLG will obtain independent medical examination reports for its clients to combat the VA’s arsenal of VA doctors. VLG has achieved remarkable success with private medical opinions largely due to the quality of these medical reports. VLG ensures the quality of these examination reports by following a careful procedure: namely, identifying the appropriate medical specialist to evaluate the veteran’s disability, sending a complete, but easily understood, written outline of the veteran’s case for the physician’s review, and securing and forwarding to the physician all relevant medical and non-medical information. VLG pays for these opinions not the veteran.
Do you need assistance in appealing a veteran disability decision or seeking increased rating percentages?
Contact Veterans Law Group, a law firm dedicated to helping veterans and their families, just like you. Fill out this questionnaire and submit to our office for evaluation. We will review your request for a consultation and contact you as soon as possible. Our consultations are free of charge.