TDIU (Total Disability/Individual Unemployability) is a significant benefit for many Veterans.
It allows you to be compensated as 100% disabled, even though your service-connected disabilities may not add up to 100% (even using VA Math).
TDIU most commonly comes into play when your service-connected disabilities prevent you from engaging in substantially gainful activity. Most folks think of TDIU as one benefit. In fact, it is really two separate ways to get the same benefit of a 100% rating: Total Disability, or Individual Unemployability.
In fact, it would be better to say that the benefit is "TD/IU" and not "TDIU".
Semantics aside, TDIU is a very powerful tool for a lot of Veterans, allowing them to live on a sustainable income when their service-connected conditions, illnesses, injuries and disabilities prevent them from working.
There are two kinds of TDIU: schedular (think "TD") and extra-schedular (think "IU").
Don't get me wrong - you still have to prove all the elements of the TDIU claim, whether schedular or extra-schedular. However, the "essence" of the analysis depends on whether you are claiming schedular or extra-schedular TDIU.
This is, by far, the most common type of TDIU.
This benefit allows the Veteran to receive a 100% disability rating if he/she is unable to secure substantially gainful employment and has ratings that reach the following levels: a) a single service connected disability rated at 60% or more, or b) the result of 2 or more service-connected disabilities where the total rating is 70% and at least one disability is 40% or more.
The VA Regional Offices frequently fail to consider schedular TDIU even when these rating levels are achieved - so read your VA Ratings Decision carefully.
This type of claim should be automatically considered by the VA Regional Office whenever the Veteran's service-connected impairment ratings reach the above levels.
Books could be written on this topic - it is not one that is easily understood or applied by Veterans, VSOs, lawyers, advocates, and judges alike. There are a lot of Myths out there in the Veteran Community about how to get extra-schedular TDIU and what evidence you need to prove it.
It is, allegedly, the policy of the VA to rate all veterans as 100% disabled that are unemployable because of their service connected medical disabilities regardless of the percentage awarded.
For extra-schedular TDIU to be awarded, the VA requires that the rated %'age inadequately compensate for the loss of wage-earning capacity; in short, the Veteran's situation must present such an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards. This is after consideration of related factors as marked interference with employment or frequent periods of hospitalization. Well, that's a grandiloquent and melodramatic mouthful.
But what does it mean?
Generally, the VA Regional Office is going to be looking for a unique set of circumstances that show that you are "unemployable" due to your service-connected injuries, even though you aren't rated at high enough levels of disability for those conditions.
This is a challenging claim to prove, will require expert opinions in most cases, and in many cases, can require a lot of patience from the Veteran, as it will frequently require perfecting a BVA appeal in the goal of securing a remand, or an appeal to the Court of Appeals for Veterans Claims (CAVC).
Here are 5 Factors that relate to the consideration of Extra-schedular TDIU. Keep in mind, these are "common" factors - and certainly not "all" factors that are relevant.
Receipt of these benefits is relevant information.
SSDI requires that a person be unable to participate in "substantial gainful activity" in order to be considered disabled. (While this is a legal term of art that will require considerable understanding of its meaning, one thing is clear - "marginal employment" is NOT "substantial gainful activity" before the VA).
If the SSDI is approved based solely on your service-connected disability, this is a very relevant factor for the VA Regional Office to consider.
Frequently, SSDI is approved for a collection of conditions that preclude the Veteran's ability to participate in a "substantial gainful activity". These often leads to confusion for Veterans who believe that their SSDI was based on "Condition A" which is service-connected, but in reality the SSDI Decision was based on Condition A and Condition B (the latter of which is frequently not service connected).
The VA may not consider Non-service-connected disabilities in the evaluation of extra-schedular TDIU.
However, my first question as a Veteran advocate is if the non-service connected disability is impacting the ability to work directly, or if the non-service connected disability is aggravating or secondary to the service-connected condition (resulting in reduced employability). If the latter situation applies, then I might ask why the Veteran hasn't pursued service-connection of the currently non-service connected condition
In quite a few cases, though, the Veteran may be overlooking the impacts that Condition A and Condition B are having on each other, and the question worth asking is this: can the non-service connected condition be service connected on a theory of aggravation or secondary service-connection?
If so, the Veteran may not need to fight for extra-schedular TDIU at all, depending on the outcome of the secondary or aggravation claim.
This is an area ripe for error by the VA. The focus of these factors is the totality of the Veteran's current situation. Assume you are a lawyer and even though your service-connected conditions were impacting your work, you were employed on Monday.
If you could not work on Tuesday because of the service-connected disability, the temptation is for the VA Regional Office to say that the situation is temporary, or you were just employed, or you are highly educated and can certainly find gainful employment. At least in theory, the VA Regional Office has a point.
However, the focus of the extra-schedular TDIU evaluation is the totality of your present circumstances - not speculation on the path forward for the highly educated or long-employed Veteran.
If a Veteran is frequently hospitalized for his or her condition, and this interferes with the Veteran's work or employability, the hospitalizations are a factor that should be considered by the VA Regional Office in a claim for extra-schedular TDIU.
The VA may not consider age in the evaluation of extra-schedular TDIU.
To secure extra-schedular TDIU, you are very likely going to need expert support - either a Vocational or Occupational expert evaluation and report, or a medical expert opinion from your treating physicians. The BVA has frequently held that the Veteran's opinions and assertions that he/she is unable to maintain gainful employment due to his/her service-connected condition is not a competent medical opinion.
Lastly, neither the VA Regional Office nor the BVA have the authority to award extra-schedular TDIU - these claims must be referred to the Director of the VA Compensation and Pension Service for final decision.
by Chris Attig
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Chris Attig, an Accredited Veterans Benefits attorney and Founder of the Attig Law Firm, PLLC is responsible for the content of the site. The principal office of Attig Law Firm, PLLC, is located in Dallas, Texas. Chris Attig is NOT Certified by the Texas Board of Legal Specialization. - Please view our website disclaimer.
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