If a veteran who is unable to work due to service-connected disabilities does not meet the rating requirements discussed in part 1, they may still be awarded a TDIU rating based on an extra-schedular basis. The standard for granting TDIU based on an extra-schedular basis is a finding that the case presents “such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular requirements.” This means that the VA is looking for unique circumstances that show the veteran is unemployable due to their service connected disabilities even though they don’t meet the schedular rating requirements.
Extra-schedular TDIU involves the understanding of two separate VA regulations. The first regulation says that the VA is required to take certain actions when a veteran proves that the requirements of schedular TDIU are inadequate. However, this regulation is not a required element for extra-schedular TDIU. A veteran does not have to prove that entitlement to TDIU cannot be adequately decided on a schedular basis. So why is it relevant? The VA will often deny extra-schedular TDIU on the basis that the veteran did not show that their exceptional circumstances were outside of the rating requirements. If the VA denies extra-schedular TDIU on this basis, they have used the wrong analysis for their evaluation. The second regulation is what matters when dealing with extra-schedular TDIU. This regulation states that “all veterans who are unemployable because of service connected disabilities shall be rated totally disabled.” How is this different from the first regulation? The veteran does not have to show that the schedular TDIU criteria is insufficient in their cases.
There are certain factors that the VA may consider when making a determination of whether a veteran is entitled to extra-schedular TDIU. These factors include, but are not limited to the following:
- Social Security Disability: Typically, Social Security disability benefits will be approved for multiple conditions that might not be all service-connected conditions. So, just because a veteran is receiving social security benefits, does not mean they will also be entitled to receive TDIU benefits. However, if the veteran’s social security benefits are approved based SOLELY on their service-connected disability or disabilities, it will be a very relevant factor for the VA to consider.
- Non Service-Connected Disabilities: The VA may not consider non service-connected disabilities when they evaluate extra-schedular TDIU. However, it is important for a veteran to ask themselves whether a non-service-connected disability that affects their employability aggravates or is secondary to a service-connected disability. If the answer to that question is yes, then the veteran may want to consider looking into whether the non-service-connected disability can be service-connected based on a theory of aggravation or secondary service connection. This may allow the veteran to qualify for schedular TDIU, removing the need to fight for extra-schedular TDIU.
- Education and Employment History: When looking at a veteran’s education and employment history, the VA should look at the totality of the veteran’s current circumstances. This means that the VA should not speculate about whether the veteran’s situation is temporary. The VA should also not say that a veteran is employable based solely off their level of education.
- Frequent Hospitalizations: When frequent hospitalizations that are needed for a service-connected disability interferes with a veteran’s work or employability, these hospitalizations should be considered by the RO.
- Age: The VA may not consider a veteran’s age when evaluating entitlement to extra-schedular TDIU.
Keep in mind that the above five factors are not the only factors that are relevant in the consideration of extra-schedular TDIU. Also keep in mind that extra-schedular TDIU cases can be difficult to win. The VA does not typically like to grant TDIU on an extra-schedular basis.
