An “IU” rating, or “TDIU,” is where VA pays a veteran at the 100% rate even if their disabilities only combine to a percentage less than 100%. A veteran should receive TDIU where the veteran’s service-connected disabilities render them unable to maintain a “substantially gainful occupation.” Thus, if a veteran is rated at 80% but his or her service-connected disabilities prevent them from keeping a regular job, that veteran should be paid at the 100% rate.
If a veteran is rated least 60 percent for a single disability, or 40% for a single disability but also has a combined 70% rating, they are eligible for a TDIU rating if those disabilities prevent them from working. This is referred to as “schedular” TDIU. A veteran who does not meet the percentage requirements is still eligible for TDIU but there is an added layer of review. This is referred to as “extraschedular” TDIU.
What is a substantially gainful occupation?
A veteran does not have to be completely unemployable to be eligible for a TDIU rating. A job which does not pay the veteran above the poverty threshold (roughly $14,000 per year) is not considered substantially gainful. Employment in a “protected environment” (regardless of pay) is not considered an ability to maintain a substantially gainful occupation. One example of a “protected environment” is a family business where no one minds if the veteran comes in late, leaves early, or takes long breaks to accommodate their service-connected condition. The Court of Appeals for Veterans claims has said that “the magnitude of a veteran’s job responsibilities and the degree of accommodation necessary for successful, full-time work might be appropriate factors to consider.” Generally, if your work provides special accommodations for your service-connected disabilities that they aren’t legally required to provide or that you couldn’t expect if competing for a job on the open market, it likely represents a “protected environment.”
The service-connected disabilities must prevent employment in a substantially gainful occupation
It’s not enough to have one or more service-connected disabilities and also be unemployed. Rather, VA should consider whether (and the veteran should provide evidence to support) the service-connected disabilities are what restrict the veteran’s employability. Relevant factors include:
- The veteran’s history, education, skill, and training;
- Whether the veteran has the physical ability to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Think of your limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and
- Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Think of your limitations concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.
VA’s analysis must focus only on the service-connected disabilities and their impact on the veteran’s employability. While this may be a difficult concept for a VA adjudicator to grasp, VA is not allowed to consider a veteran’s age or the impact of non-service connected disabilities. Therefore, even if a veteran is 95 years old, blind because of a car accident that happened after service, and suffering from age-related dementia, that veteran should still receive TDIU if their service-connected PTSD, back, knee, and ankle conditions would prohibit them from keeping a job.
If VA denies a TDIU claim because it the veteran’s unemployability is due to the “combined effects” of non-service-connected and service-connected conditions, that is the basis for an appeal.
Veterans rated less than 60% for a single disability or 40% for a single disability plus a combined 70% rating are eligible for TDIU
A veteran who does not meet the percentage requirements under the rating schedule but who is unable to work due to service-connected disabilities may still be awarded a TDIU rating on what VA calls an “extraschedular basis.” In this situation, the Regional Office should refer the claim to the Director of Compensation Service for an initial determination.
The veteran maintains all of their appellate rights. Therefore, if the Director of Compensation Services denies the TDIU claim, a veteran can still appeal that denial to the Board of Veterans’ Appeals and on to the Court of Appeals for Veterans Claims. The veteran’s burden is the same. The veteran has to show that their service-connected disabilities keep them from maintaining substantially gainful employment.
So How Do I Get a TDIU Rating?
A TDIU rating is not a separate claim. Rather, TDIU is part and parcel of rating the underlying disabilities. So, when filing a claim for the underlying condition, if that condition (or multiple conditions) prevents a veteran from working, be sure to inform VA.
If a veteran is already service-connected for conditions that prevent them from working, the veteran should submit a claim requesting an increased rating for those conditions.
A VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, is helpful but not required. In practice, though, VA commonly denies claims simply because a 21-8940 wasn’t submitted. Our recommendation is to always submit the form.
Has VA Denied Your TDIU Claim?
We can perform a free review of your claim file to ensure VA followed the proper rules and regulations and to make sure you have all the right evidence needed to substantiate your claim. Contact us so we can get a copy of your claim file from VA and review the file.