TDIU: The Percentage Requirement and Prevention of Substantially Gainful Employment

Veterans who are not rated as 100 percent disabled may still be entitled to compensation at the 100 percent level in some circumstances if they can demonstrate their service-connected disabilities prevent substantial employment. This is called total disability based on individual unemployability (TDIU).

TDIU may be proved under a schedular rating in a couple of different ways: 1) If a veteran has one service connected disability 60 percent or more disabling and is unable to maintain substantially gainful employment; 2) If a veteran has a combined total rating of 70 percent or more with one disability rated as 40 percent or more disabling and is unable to maintain substantially gainful employment.

The question of meeting the TDIU percentage requirement is black and white; however, the question as to whether a veteran is unable to maintain substantially gainful employment may at times be blurred, depending on the facts and circumstances of the case. Recently, the Court of Appeals for Veterans Claims (Court) provided some clarity to this question in Floore v. Shinseki.

In Floore, a veteran argued the Board of Veterans’ Appeals (Board) had a duty to provide a combined-effects medical examination with regard to his multiple-disability TDIU claim after he raised the claim. See Floore v. Shinseki, No. 12-2017 (2013).

In Floore, the Court held a combined-effects medical examination was not required per se by statute; however, the Court still held the Board failed to adequately explain how the evidence supported its determination that the combined effects of multiple disabilities did not prevent substantially gainful employment.

In Floore, the veteran had a 90-percent disability rating with a heart disorder, PTSD and peripheral neuropathy among his service-connected conditions. The Board addressed each of these individually; however, the Court stated the Board failed to explain the cumulative functional impairment of all his service-connected disabilities and why, together, they did not prevent substantially gainful employment. Moreover, the Court pointed out that the Board failed to address potentially favorable and material evidence. For these reasons, the Court remanded the case to the Board for further development.