One of the most frustrating things for many veterans under the current VA service-connected disability rating schedule is the attempt to obtain a 100% disability rating, particularly where a veteran has multiple disabilities. As discussed in a previous post, combining two or more disabilities is a complicated process in which 50% plus 50% does not equal 100% but, rather, 75%. In fact, the closer a veteran gets to a 100% disability rating, the harder it seems to be to obtain one. For example, once a veteran is rated 80% disabled, each additional 10% disability only adds 2% to his total rating rather than an additional 10%. (To help with this we now have a disability calculator.)
Meeting the criteria for a 100% rating on the ratings schedule, or combining multiple disabilities to obtain a 100% rating can be very difficult. Failure to meet those criteria, however, does not mean that a veteran is not totally disabled. For this reason, the VA regulations provide for an alternate route to a total disability rating—individual unemployability.
When a veteran’s service-connected disability or disabilities prevent him from being able to secure and follow substantially gainful employment, he is entitled to a total disability rating based on individual unemployability (TDIU or IU). In determining whether a veteran qualifies for TDIU, the VA should consider not only whether a veteran is capable of getting a job but also whether he is capable of keeping a job. Furthermore, any job that the veteran is able to secure and follow must be a job which is “substantially gainful.” In other words, the job that the veteran is able to do must provide income which places the veteran above the poverty level. Of note, “substantially gainful employment” does not include working in a sheltered environment such as a veteran’s own family business or a sheltered workshop.
Under the TDIU regulation, a veteran should automatically be considered for TDIU when there is evidence that his disabilities keep him from working and he has a qualifying disability rating. Under those circumstances, the veteran should not even have to ask to be considered for TDIU, but we find that the VA often fails to make a determination as to TDIU unless it is specifically requested by the veteran. It is important to note that the VA will probably assign the date that the veteran asks for this increased rating as the effective date for TDIU. Be aware, however, that you may be entitled to an earlier effective date if you became unable to work earlier than the date that you actually requested that entitlement.
For purposes of the VA regulations, a qualifying rating is either a single service-connected disability with a 60% rating or multiple service-connected disabilities and a total rating of 70%. This is a simplified definition of a qualifying rating as there are many exceptions to this basic rule. For example, if the veteran injured his back and knees in a single accident, these could be considered a single disability. Similarly, if the veteran has multiple injuries incurred in a single combat action, these, too, could be considered a single disability.
Regardless of the schedular rating that a veteran has been assigned for his disability or disabilities, if those disabilities prevent the veteran from earning a living wage, he is entitled to a total disability rating based on individual unemployability.