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Total Disability Rating Based on Individual Unemployability

I am often surprised about the questions veterans ask when I bring up the issue of unemployability.  I sometimes find that veterans are not even aware of this alternate route to a total disability rating (100%).  If you are a veteran with service-connected disabilities that impair your ability to work but are rated as less than 100% disabling, you owe it to yourself to find out more about the additional benefits to which you may be entitled.

“Am I entitled to a total disability rating based on individual unemployability (TDIU or IU)?”

The primary consideration in determining whether or not veterans are entitled to TDIU is whether their service-connected disabilities prevent them from obtaining and maintaining substantially gainful employment.  In other words, can you find a job that pays enough to put your earnings over the poverty level?  And are you capable of keeping such a job if you are able to find one?  If your service-connected physical or mental disabilities impair your ability to find and keep a job, you may be entitled to TDIU.

“When and how do I apply for TDIU?”

Interestingly enough, you may have already applied for TDIU without knowing it!  A claim for entitlement to TDIU is not always a separate, free-standing claim.  A veteran can file an Application for Increased Compensation Based on Unemployability (also called a VA Form 8940) at any time to establish a claim for TDIU.  However, if the issue of unemployability is properly raised by the record in conjunction with a claim for service connection or a claim for increased rating, then the VA should consider the issue as part and parcel of the underlying claim, whether or not the veteran has specifically requested TDIU.

“How is the issue of unemployability raised by the record?”

VA is supposed to automatically consider the veteran’s entitlement to TDIU at any time that the evidence shows that his or her service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment, so long as the veteran’s disability ratings satisfy the requirements of the VA regulations.  Evidence which may assist you in proving your case could be letters from former co-workers or employers, medical evidence, and/or evidence from a vocational expert.  In order to satisfy the requirements of the VA regulations, the veteran must either have one disability which is rated 60% or higher or a combination of disabilities rated 70% or higher (with at least one of those multiple disabilities being rated 40% or higher).

“What if I don’t meet the disability ratings requirements?”

Even if a veteran cannot meet those ratings requirements established by the regulations, he or she still may be entitled to TDIU.  In that case, the veteran should request extra-schedular consideration for TDIU.  This is a more difficult case to win, but not impossible.

“How does TDIU differ from a 100% rating under the disability rating schedule?”

A veteran who is rated 100% by means of TDIU is entitled to the same benefits as a veteran who receives a schedular 100% rating.  The primary difference is that a veteran who receives a schedular 100% rating can receive his benefits and continue working while a veteran who receives TDIU cannot return to work and continue to receive benefits.

Obtaining a 100% schedular rating can be difficult if you are trying to combine multiple disabilities in order to reach a total rating.  The alternative TDIU route can make it easier to gain those same benefits.  If you have disabilities related to service which impair your ability to work, get help finding out more about TDIU and whether you qualify.

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by Attorney Shannon Brewer

January 16, 2014

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