There are two ways that a veteran can use to prove entitlement to TDIU (total disability based on individual unemployment). One way is referred to as schedular TDIU. The other way is referred to as extra-schedular TDIU. Today’s blog post will cover schedular TDIU.
There is a two-step analysis used to determine whether a veteran qualifies for TDIU on a schedular basis. First, the veteran must satisfy certain percentage rating requirements. A 100% “schedular” rating is achieved when a veteran’s combined disability ratings equals 100%. Getting a 100% can be hard to do. Oftentimes, a veteran does not have a 100% rating, but still suffers from a disability (or multiple disabilities) that makes it impossible for him to work. In these cases, a veteran can still receive benefits based on a 100% rating because he is totally disabled based on his individual unemployability. In order to do so, the veteran must meet the following rating requirements:
- If the veteran has one service- connected disability, the disability must have a rating of 60% or more.
- If the veteran has multiple service-connected disabilities, these disabilities must have a combined rating of at least 70% with at least one of the disabilities having a rating of 40% or more.
It is important to know that there are special rules for calculating the 60% requirement when one service-connected disability is involved, and for calculating the 40% requirement when there are multiple disabilities involved. The VA has developed a special definition of what qualifies as “one disability” for the purposes of the 60% and 40% requirements. The following are considered one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affected a single body system, for example orthopedic, digestive, respiratory, etc.; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war.
Let’s look at an example to illustrate the VA’s definition of “one disability.” A veteran has three separated service-connected orthopedic conditions: osteoarthritis of the right shoulder, degenerative joint disease of the left knee, and chronic lumbar strain. Each of these conditions is rated at 30%. At first glance it does not appear that the veteran would be entitled to TDIU. However, the veteran’s service-connected disabilities all stem from a single body system (orthopedic) so the veteran can combine all of the ratings to meet the rating schedule requirements for TDIU. The veteran’s combined rating for all of his service-connected disabilities would be 66%. Because the veteran’s service-connected disabilities affect a single body system, they will be treated as one disability. Now, the veteran has one disability with a rating of at least 60%. He meets the rating requirements to qualify for TDIU, and the first step of the VA’s analysis is complete.
If the veteran meets one of the rating requirements discussed above, the VA will move on to the second step of the TDIU analysis. The second step of the TDIU analysis is a determination of whether the veteran is prevented from securing or following a “substantially gainful occupation” because of his service-connected disabilities. This is a subjective determination that depends on the individual facts and circumstances of the veteran. For example, a veteran with a job that requires a lot of manual labor will be evaluated differently than a veteran with a job that has the veteran sitting down most of the time. The evaluation of entitlement to TDIU will turn on the various details unique to each veteran’s case. This makes it very important to have supporting evidence. The veteran should present solid evidence of their service-connected disabilities, employment history, educational and vocational attainment, and any other relevant factors.
Whenever a veteran reaches one of these two levels of ratings, the RO is supposed to automatically move on to the second step of the TDIU analysis. However, the RO frequently fails to do so. This makes it extremely important for a veteran to read their rating decisions. A veteran may have to raise the issue of entitlement to TDIU on their own initiative.
