TDIU: Total Disability Individual Unemployability

/ / Posts
Unemployability

Veterans Administration disability benefits are available to veterans who were injured or became sick while serving in the military. Benefits are also available when a condition that existed before military service began was made worse because of military service.

Benefits consist of health care and disability compensation. Compensation is based on the veteran’s disability rating — a measurement of the degree to which a physical or mental impairment is disabling. Disabilities need not be caused by war wounds. Chronic back pain, hearing loss, and post-traumatic stress disorder are examples of disabilities for which benefits might be paid if they were caused by military service.

Disability ratings are assigned in increments of 10%. In 2022, compensation for a 10% disability rating is $152.64 per month. Monthly compensation for a 20% disability rating is $301.74.

Compensation becomes more significant when a veteran’s disability rating reaches 30%. Veterans with a 30% or more disability rating receive additional compensation when they have dependents, including a spouse, children, and parents. Compensation payments can vary widely depending on the veteran’s disability rating and the number of dependents the veteran has.

The largest benefits are paid to veterans who have a 100% disability rating. It is rare, however, for the VA to assign a total disability rating. Fortunately, the same compensation that is paid to a 100% disabled veteran may be available to veterans who cannot work because of a service-related disability. Those veterans are assigned a Total Disability Individual Unemployability (TDIU) rating.

Individual Unemployability Standard

To qualify for the same benefits as a veteran who receives a 100% disability rating, a veteran must prove that two facts are true. First, the veteran must have at least one service-connected disability rated at 60% or more, or a combination of two or more service-connected disabilities if at least one is rated at 40% or more and the combined rating is 70% or more.

Disability ratings are established by medical evidence. While the VA assigns disability ratings based on its own analysis of the evidence, it is possible to appeal when the VA’s rating does not match the VA’s Schedule for Rating Disabilities. An appeal, or an application for a new rating, may also be based on a worsening of the veteran’s symptoms. Appeals are often based on medical evidence that the VA failed to consider.

If a veteran has at least a 60% disability rating (or meets the combined rating standard explained above), the veteran must show that a second fact is true in order to receive the benefits a 100% disabled veteran would receive. The veteran must prove that he or she cannot hold down a steady job because of a service-related disability.

In technical terms, the veteran must prove that a service-related disability prevents the veteran from maintaining “substantial gainful employment.” Employment is substantially gainful when it pays annual wages that exceed the poverty level. 

That standard does not require proof that the veteran is incapable of doing any work at all. Performing an occasional odd job, working just a few hours a month, helping with a family business, or doing work in a sheltered workshop will not usually satisfy the legal definition of substantial gainful employment.

Proof of Unemployability

The VA must consider several factors when it decides whether a veteran is capable of maintaining substantial gainful employment. Those factors include:

  • the nature of the veteran’s disabilities;
  • the veteran’s education;
  • the veteran’s vocational skills;
  • the veteran’s employment history before becoming disabled;
  • the veteran’s employment history after becoming disabled; and
  • whether the veteran was fired from one or more jobs after becoming disabled and the reasons for the employment termination.

Some of this information is presented to the VA on Form 21-8940. The veteran will provide details of work history, educational history, and how the service-related disability caused recent employment to end. While it is important to complete the form, the form alone will not always give the VA the information it needs to assign a TDIU rating.

The VA will confirm some of the information on Form 21-8940 by contacting listed employers within the past five years and asking why the veteran’s employment ended. When the employer provides a reason that is consistent with the disability (“couldn’t stay focused” if the disability is a brain injury or “couldn’t sit or stand” if the disability is a back injury), the VA will be more likely to award a TDIU rating. Still, even that information will often be insufficient to make a strong case for TDIU benefits

Vocational Expert Evidence

Vocational experts go beyond the basics to provide a detailed analysis of employability. Based on medical evidence, they assess the veteran’s functional limitations and determine whether there are jobs within the labor market that a person with those limitations can perform. As a simple example, an individual must be able to lift 10 pounds to perform sedentary work. If a service-related injury prevents the veteran from engaging in any lifting, a vocational expert might conclude that the veteran cannot engage in sedentary employment and thus cannot perform substantially gainful employment. 

Vocational experts go beyond functional limitations by assessing the veteran’s reliability, ability to concentrate, personality, and productivity. A veteran with severe PTSD might be physically capable of working but incapable of getting along with co-workers. Employers in a competitive work environment will rarely continue the employment of a worker who constantly bickers or displays irrational anger.

Vocational experts take account of a variety of disabilities and their combined impact on employment. An orthopedic surgeon might tell the VA that a veteran’s knee injury will allow the veteran to perform sedentary work, but PTSD might make it impossible for the veteran to exercise the kind of patience that sedentary work demands.  Vocational experts can assess how the interaction of multiple disabilities affects employability — an assessment that a physician examining a single disability will not be qualified to make.

The interplay of physical and psychiatric disabilities is not usually apparent on the forms that the VA asks veterans to submit. Veterans and their lawyers use vocational experts to provide additional evidence, grounded in a complete factual investigation, to determine whether a veteran is incapable of substantial gainful employment and thus entitled to a TDIU rating.