Often times, when a veteran is applying for VA disability benefits, they are unable to work due to their impairment. The Department of Veterans Affairs (VA) calls this “unable to sustain a substantially gainful employment.” Seeking adequate benefits can be very frustrating for disabled veterans who can’t work, especially when VA appeals process is quite challenging.
However, the VA offers Individual Unemployability (IU) benefits, also called Total Disability based on Individual Unemployability (TDIU), to veterans unable to hold substantially gainful employment. Veterans with IU status can receive the 100% VA disability compensation rate even when their service-connected disabilities aren’t rated as 100% disabling. Here’s what you should know when seeking this type of veterans disability compensation.
Eligibility and Required Evidence
A veteran must meet a certain eligibility criteria before getting IU. The eligibility criteria are as follows:
- You must be a veteran.
- You must have at least one service-connected disability rated at 60% or higher, OR
- have two or more service-connected disabilities with one being at least one disability rated at 40% or more with a combines rating of 70% or more.
- You must be unable to maintain substantially gainful employment as a result of service-connected disabilities.
Evidence for TDIU Claims
A veteran must show evidence that one or more service-connected disabilities prevents him from working. The VA looks to see if the veteran can perform the mental and/or physical tasks that he would need to do on the job. Importantly, VA does not consider marginal employment— such as side or odd jobs—as gainful employment for VA purposes.
Substantially Gainful Employment and Sheltered Work
So, what is substantially gainful employment? It is employment that provides a wage greater than the poverty level. As of 2021, the federal poverty level for a single person is $12,880 per year. Simply put, if the veteran’s earnings are less than the poverty threshold, then they are not considered to be gainfully employed.
Note that a veteran can work and get IU benefits. The VA does recognize some jobs as “sheltered work.” Sheltered work is a protected employment or a work environment that provides special accommodations to the veteran. In these cases, the employer would not give accommodations to any other employee.
If you’re not sure whether you work in a sheltered work environment, ask yourself if you were to leave your current position, would your employer replace your current position? Or is your current position created just for you and your disabilities?
Keep in mind that VA individual unemployability compensation is not for veterans who are, or going to be, temporarily out of work.
Applying for Individual Unemployability Benefits
The first step in applying for TDIU benefits is completing the VA Form 21-8940: Application for Increased Compensation Based on Unemployability. You can find this form here. Along with this form, a veteran should submit evidence, such as medical records and lay statements, to help prove the claim and show their employability status. Remember that a veterans service office (VSO) at your local VA regional office can help you with your initial claim for veterans benefits, as well as your application for increased benefits.
The VA will most likely require a C&P exam for your unemployability claim, and they will contact you to schedule the appointment. The C&P examiner will determine whether you can work. If the C&P examiner decides you can work, then you should get an outside medical opinion. You will probably also have to appeal and present this new medical evidence. Do not give up just because the first decision denies you.
Seeking Support for Your VA Claim
The VA’s rating decisions, appeal process, and TDIU requirements can be complicated. If the VA denied your disability claim or application for individual unemployability benefits, or awarded a lower total disability rating than expected, the attorneys at Hill & Ponton are available to help. Our veterans and social security disability law firms works with veterans to appeal their claim for VA benefits and pursue higher VA disability ratings. Contact us today for a free case evaluation.
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