Total Disability Based on Individual Unemployability (TDIU)

Total Disability Based on Individual Unemployability (TDIU)

A veteran may be entitled to a 100% rating, even if his or her disability(ies) themselves do not add up to 100%. This occurs when the veteran's disabilities preclude him or her from substantially gainful employment. 

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

​

Two Step Analysis

1. Meet the minimum rating percentage requirements:

   • Have one service-connected disability rated at least 60%, or​

   • Have multiple service-connected disabilities, with one at least rated at 40%, and your combined rating above 70%.

   • However, a veteran may still be able to secure TDIU benefits even if he or she does not meet the minimum requirements. I can advocate for you and argue that you should be considered under something known as an "extraschedular basis," and that you warrant TDIU benefits because you are unemployable because of your service-connected disabilities.  

2. Be unable to secure or maintain "substantially gainful employment."​

​

What is Substantially Gainful Employment?

The VA regulations do not define substantially gainful employment, but the M21 manual provides some guidance when it notes that 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."

 

The VA indicates that the “ability to secure employment” refers to the veteran’s success in obtaining work of the type the Veteran is capable of performing and that is available in his/her community. 

​

Practically speaking, if the veteran can show that he or she is only capable of marginal employment, then this may suffice. Marginal employment is defined as earned annual income that does not exceed the poverty threshold for one person as established by the U.S. Department of Commerce, Bureau of the Census. A veteran can establish marginal employment either by demonstrating income less than the poverty threshold or by the facts of the case.

​

A veteran may still be able to obtain TDIU benefits if he or she is engaged in income earning well above the poverty threshold if he or she is employment in a "protected environment." This type of employment is usually a family business or a sheltered workshop, which provides great leeway to disabled veterans whom would not be employable anywhere else. 

​

The VA often denies a claim for TDIU by arguing that the veteran in not precluded from something known as sedentary or light work. However, the VA is required to assess your educational and occupational history in its determination - if you have no training or experience in the types of jobs classified as sedentary or light, then you might not be able to secure that type of employment, which would be contrary to the VA's denial.

​

What is Sedentary Work or Light Work?

The VA often argues that you are still capable of sedentary, i.e., seated, employment even though they agree that you may be precluded from labor-intensive work. However, that may not be accurate for you. 

​

The Social Security Administration (SSA) defines sedentary work as work involving lifting no more than 10 pounds at a time and at least 6 hours of sitting in an 8-hour work day. Additionally, the SSA defines light work as lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Light work might require a good deal of walking or standing, or sitting with pushing and pulling. 

​

If you are not capable of sitting for long periods of time, then you are not capable of sedentary work. You might also be precluded from sedentary work if you do not have fine dexterity of your hands and fingers, such as with carpal tunnel syndrome. 

​

Vocational Evidence

What if you do not have a college degree? What if your only employment history is labor-intensive work? What if you do not have much experience with computers, supervisory work, data entry, typing, customer service, or research, writing, and analysis? What if your disability causes you non-exertional issues, such as difficulty communicating, remembering, following instructions, using judgment, adapting to change, and dealing with people?

 

I work with vocational experts who can examine you and prepare evidence for your claim that will connect the dots based on your personal history and background. Often times the VA will benefit from someone who can put all the pieces together, so to speak. 

​

Vocational evidence and combined-effects opinions are extremely important as well, especially if you suffer from multiple service-connected disabilities. It may be the case that each service-connected disability standing alone would not preclude you from substantially gainful employment, but the "combined effect" of all of your disabilities do preclude you from substantially gainful employment. A vocational expert and medical experts can prepare combined-effects opinions for the VA to help them get it right.