A Guide to VA Unemployability

VA Unemployability

If you have separated from service and are unable to work due to a disability, you may be wondering what your rights are. As a Veteran, you may be eligible to appeal for TDIU, which stands for Total Disability based on Individual Unemployability (IU).

However, we know this can be a confusing process. You may be wondering “Who is eligible?” and “What are the benefits I can get?”

Get the information you need in this guide from Berry Law, a Veteran-owned, Veteran-managed law firm. We represent Veterans filing appeals to the VA to gain unemployability status, improve disability benefits, and get full disability compensation.

Our mission is to make sure all Veterans get all the benefits they are legally entitled to.

Are You a Veteran Who is Unable to Work Due to Injuries Sustained During Your Service?

If you cannot maintain substantially gainful employment because of injuries you sustained during your active service, the VA may issue you 100% disability compensation based on IU.

To achieve that, you must prove legally that:

  • You are unable to work
  • The disability or disabilities preventing you from holding steady employment are related to your service

Most Veterans know they would be entitled to some amount of disability compensation for an ailment or injury acquired because of their service. However, sometimes Veterans overlook the relation between certain injuries and their service. The VA will not try to connect the dots on your behalf, and it us up to the Veteran or their lawyer to help the VA make the connection. Failing to realize that a disability can be traced back to an event that occurred in service will impact your VA disability rating, and in the end, may leave you short of what you need for IU benefits.

At Berry Law Firm, we can help disabled Veterans looking to get IU benefits. We will fight for you whether you are just filing for individual unemployability for the first time or reopening an existing disability claim. Contact us to find out more.

How Much Does TDIU Pay?

Below is an overview of how much money a Veteran would receive monthly in the 2020 pay chart if they qualify for TDIU, excluding other VA unemployability benefits.

  • Veteran with child only: $3,221.85
  • Veteran with 1 child and spouse (no parents): $3,406.04
  • Veteran with 1 child, spouse and 1 parent: $3,545.02
  • Veteran with 1 child, spouse and 2 parents: $3,684.00
  • Veteran with 1 child and 1 parent: $3,360.83
  • Veteran with 1 child and 2 parents: $3,499.81
  • Veteran alone: $3,106.24
  • Veteran with spouse only: $3,279.22
  • Veteran with spouse and 1 parent: $3,418.20
  • Veteran with spouse and 2 parents: $3,557.18
  • Veteran with 1 parent: $3,245.02
  • Veteran with 2 parents: $3,384.00

The Criteria for 100% Disability

You can qualify for Total Disability based on Individual Unemployability if you meet two criteria:

  • Inability to maintain substantially gainful employment. “Substantially gainful” means a steady job that would provide regular financial support. Marginal employment and odd jobs do not count for this matter. The final rating decision focuses on this criterion
  • Having at least one service-connected disability rated at 60% or higher, OR at least two service-connected disabilities, at least one of them rated at 40% or higher, with a combined rating of at least 70%.

This is important: Veterans who cannot support themselves financially may be eligible for a total disability benefit based on individual unemployment even if their service-connected disability or illness, or a sum of several connected disabilities, has a VA disability rating of less than 100 percent.

In some cases, a Veteran could get Total Disability based on Individual Unemployability benefits even if their combined service-connected disabilities do not reach the minimum threshold of the disability rating. This is possible if the Veteran can prove that, under their specific individual circumstances, their disability or injury directly interferes with their ability to work.

For example, they may require frequent hospital stays or therapy that would get in the way of steady employment.

Legal Requirements for Qualifying as Unable to Work

What counts as “unable to work” in the eyes of the law and the VA?

According to the VA, “substantially gainful employment” is “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.”

In simpler words, if a disabled Veteran can make an income that is similar to non-disabled people employed in the same field, he or she is considered able to work.

To count as “substantially gainful employment” rather than “marginal employment,” the income would have to be higher than the poverty threshold per the Census Bureau. In 2016, this was $12,486 per year for an individual under the age of 65 and $11,511 for individuals aged 65 or older.

Exceptions to these rules are disabled Veterans who are self-employed, work in a family business, or find employment in a sheltered environment. In those cases, the VA may consider you for Total Disability based on Individual Unemployability benefits even if you earn an income higher than the poverty threshold.

If you earn money through the Veterans Health Administration’s Compensated Work Therapy Program (CWT), this will not count as income when the VA considers your eligibility for TDIU.

How to File for IU

To get Total Disability based on Individual Unemployability benefits, a Veteran must make sure that their disability claim for the VA includes the following information:

  • Clear medical information supporting the Veteran’s statement regarding their physical and mental health. This should include all the documented information you have, such as medical exam records, hospital records (both private and military), and outpatient records. If the VA considers your medical information insufficient or inconsistent, they may mandate a C&P (Compensation and Pension) exam
  • Detailed work history of the five years prior to acquiring the service-connected disability or disabilities preventing the Veteran from sustaining gainful employment, and records of any work performed after acquiring the injury or disability. This should contain information about all work, including sheltered work or work in a family business
  • A statement from every employer you have worked for during the year prior to becoming unable to maintain gainful employment
  • If you get Social Security Disability (SSD) benefits, you should include all relevant Social Security Administration information as well
  • If you have undertaken the VA’s Vocational Rehabilitation and Employment Service (VR&E), but the vocational rehabilitation was found impractical because of your condition, include all relevant information.

If the VA approves an application and grants benefits for Total Disability based on Individual Unemployability, the recipient will have to complete and file an annual VA employment questionnaire until he or she turns 69. This is meant to keep the VA up-to-date on the Veteran’s recent work status to determine if circumstances have changed to allow the individual to earn a livelihood.

What Forms Do You Need to File?

When filing for Individual Unemployability benefits, you will need to fill out the following forms:

  • VA Form 21-8940: A Veteran’s Application for Increased Compensation Based on Unemployability
  • VA Form 21-4192: A Request for Employment Information in Connection with Claim for Disability Benefits

The forms will require you to supply information such as:

  • All medical records pertaining to the service-connected disabilities that have made you unable to work
  • Hospitalization and outpatient care records in the past year
  • The exact date or period when you became too disabled to work
  • Information on your work history during the last five years you were able to work
  • Any education and/or vocational training you have had.

You can apply through the VA website, in person at your local VA office, or with a legal representative.

To make sure your IU application is reviewed promptly and you have the best chance of success, you should provide clear, detailed, and consistent documentation and information. A VA representative is responsible for reviewing your case and approving individual unemployability, so the more clear and exact you can be, the easier it is for them to approve your claim.

The VA may not process your claim quickly. It can take several months to review your individual unemployability benefits application. However, if your IU claim is approved, you will qualify for retroactive benefits to the date you filed.

Be Prepared to Fight

Do not assume that because you are unemployed and receive certain disability benefits from the VA, you will automatically get TDIU benefits as well. When Veterans apply for Total Disability based on Individual Unemployability, their case will undergo heavy scrutiny and the VA will deny many IU claims.

You will need to show that your service-connected disabilities directly cause unemployability and do not allow you to earn a livelihood. Typically, this is the most challenging step in qualifying for TDIU benefits.

To overcome these hurdles, you may need an attorney who is experienced in dealing with the VA. Berry Law can advise you during the IU application and appeals process to maximize your chances of obtaining TDIU disability benefits.

Mistakes Veterans Often Make When Applying for TDIU Disability Benefits

Filing your paperwork on your own may seem easy, but it can complicate your claim. This process is long, and you want to avoid any delays or errors that could affect your compensation. Common mistakes made in when filing a TDIU claim include:

  • Only listing your worst disability while filling out VA Form 21 and omitting other disabilities that may not have a high rating on their own but may enable the applicant to reach the 70 percent rating threshold
  • Listing disabilities that are not service connected. Your TDIU disability compensation will be decided based only on those disabilities that the VA has already deemed connected to your service
  • Failing to review medical records prior to filing the IU application. If you think you qualify for a higher disability rating, or have other, previously unrecorded disabilities, you should get all of these records updated and in order before you apply for TDIU

Additionally, many Veterans do not attach any vocational evidence as they fill out VA Form 21, but it is a factor that will determine whether the VA approves your claim.

Berry Law can assist with this step. One of our qualified attorneys may recommend working with a vocational expert while putting together the IU claim file. The vocational expert can provide an opinion regarding the Veteran’s ability to obtain work and earn a livelihood. Such a statement, worded in the right way, may decide whether the IU claim is accepted or denied.

Why Was My TDIU Claim Denied?

Sometimes, an application for Total Disability based on Individual Unemployability is denied even though the Veteran has provided complete medical documentation and compelling reasons for his or her unemployability. This could happen because of mistaken considerations by the VA.

To prepare for these hangups, it helps to have a trusted attorney on your team. With the firepower of Berry Law, you can rest easier knowing that our Veteran attorneys will investigate any incorrect considerations by the VA.

Below are some common reasons why TDIU claims are mistakenly denied.

Incorrect Consideration of a Veteran’s Age

Very commonly, the VA will wrongly deny IU benefits based on a Veteran’s age. The representative in charge of the case may state that a Veteran is unemployed because of age rather than service-connected disabilities. However, the VA is not allowed to deny claims based on age. Even if a Veteran has reached retirement age, they should be entitled to TDIU benefits if they can prove their service-connected condition prevents them from working.

Wrongful Consideration of Non-Service-Connected Conditions

In some cases, the VA representative reviewing the application will look at a non-service-related condition and claim that this condition, rather than service-connected disability, is the cause of unemployability. In particular, this could happen when the effects of the service-related and non-service-related conditions overlap.

For example, a Veteran might have a service-connected back or orthopedic condition with a 60% rating that causes a peripheral neuropathy that prevents him or her from working. The applicant could also have a non-service-related condition, such as diabetes, that could lead to the same effect.

In this case, the VA could claim that the inability to work results from the non-service-connected disability and deny the claim. While it might be impossible to prove unequivocally that the unemployment is indeed service-related, that is not how the process should work. If the ailment is at least as likely as not to be service-related, the VA should treat it as such while reviewing the claim.

Wrongful Estimate of the Veteran’s Work Situation

Sometimes, the VA will claim that the Veteran is working and thus not entitled to disability compensation. If the Veteran only works part-time or volunteers, and their income is less than the poverty threshold, then that work be considered marginal income. A case like this should be easy to demonstrate in an appeal.

Other times, a Veteran will work and earn an annual income that exceeds the federal poverty level, but the VA may fail to consider that the Veteran is employed in a protected work environment where the employer must make significant accommodations in consideration of the Veteran’s medical condition.

If this happens while re-applying, it is important to emphasize any special accommodations made for the Veteran to enable them to work.

Faulty Examination and Ignoring Facts

The VA often fails to consider factors such as functional loss and flare-ups in service-connected disabilities, which should entitle a Veteran to a higher disability rating. It could be helpful for a Veteran to ask for a copy of the C&P exam and review it to better understand how the examiner had answered the questions.

The exam must include information about flare-ups and loss of function. If it does not, it is possible to claim that the exam is inadequate to determine whether a Veteran is unemployable. VA reports must also accurately represent the severity of symptoms as the Veteran described.

Assigning the Wrong Effective Date

An effective date refers to the date when the entitlement to the benefit arose, and it will determine the amount of retroactive pay the Veteran will receive once their application is approved. Sometimes, the VA will base the effective date on the date the Veteran filed their claim, or when they underwent their C&P examination, rather than when the disability began impairing employment.

Can PTSD Cause Unemployability?

While many Veterans receive disability compensation for PTSD, the VA turns many service-connected PTSD claims down despite a clear diagnosis and significant impact on daily life and employability.

For example, one of the stressors supporting a PTSD diagnosis is learning that a close friend or family member has suffered a traumatic event. A Veteran may develop PTSD symptoms upon learning of the death or injury of a member of their unit. However, the VA may decide that the two members of the same unit are not “close friends” because they didn’t serve together for a long time.

At times, the VA will minimize symptoms and give lower ratings to serious mental health conditions. PTSD often causes a Veteran to be unable to work, but proving it can be difficult.

Can TDIU Payments be Taken Away?

The VA reserves the right to reduce or terminate unemployability benefits under certain circumstances. In particular, this may happen if the VA determines the Veteran’s disability rating and impact on life has become low enough to enable them to earn a living above the federal poverty level without special accommodations.

For this reason, Veterans who receive VA unemployability benefits must complete VA Form 21-4140 (Employment Questionnaire) every year to verify there have been no substantial changes in their VA disability rating or ability to work. Veterans must submit the form within a set 60-day deadline, or they risk having their benefits reduced automatically.

However, an individual employability rating can become permanent with time. If a Veteran has been receiving Total Disability based on Individual Unemployability for 20 years or more, their benefits will usually become permanent. They will not need to file the form to verify their disability rating again as long as they have kept their records up to date.

Am I Eligible for Backpay Back to the Date I Became Unemployed?

Each unemployability claim will take months, and in some cases, years, to be reviewed and processed. The time you spend waiting for approval can amount to significant sums in benefits. The VA is supposed to issue retroactive pay for this time, usually as a one-time lump sum.

In calculating retroactive pay, the most important factor beyond rating is that the VA determines the effective date correctly. The effective date can be considered the time when your unemployability began, not just the date when you filed your application.

It could have taken you years to discover that you might be eligible, gather all the documentation, obtain legal advice, and file the claim. Despite what the VA may say, you may be entitled to receive disability compensation for that time, and a lawyer can help you fight the proper determination.

How does TDIU interact with SSDI and Regular Unemployment?

Veterans can receive both Total Disability based on Individual Unemployability and SSI/SSDI benefits. While TDIU benefits are for Veterans only, Social Security Disability Insurance benefits are for both disabled Veterans and civilians who have enough work credits to qualify.

VA unemployability will only take into account disabilities that are directly connected to your service. SSDI benefits will consider any disabilities, not just those resulting from the military.

The Social Security Administration generally processes claims more much quickly and efficiently than the Department of Veterans Affairs. If you are unable to make a living, apply for both SSDI benefits and Total Disability based on Individual Unemployability. It is likely that your SSDI claim will get approved sooner, which will give you much-needed financial support while you fight a long-drawn battle for VA unemployability benefits.

VA Benefits and Your Spouse

In some cases, the Veteran’s spouse and dependent children may be eligible for health care, life insurance, and funding for vocational training. The Veteran’s spouse may be currently working to support their partner during their service-related disability claim. Nonetheless, a spouse being the breadwinner should not affect VA unemployability eligibility.

For any questions, it is best to consult an attorney with experience in VA unemployability claims.

Why Choose Berry Law

When you are fighting for your legal rights as a Veteran, you need an attorney who knows where you are coming from. Berry Law is a firm run by Veterans who have served in the jungles of Vietnam, the mountains of Afghanistan, and the deserts of Iraq.

We come from the Army, Navy, Marine Corps, and Air Force, and have a singular mission: helping our fellow Veterans obtain the maximum potential of their IU benefits and other legal rights.

We have you covered in every VA unemployability claim and will be there by your side to appeal VA decisions.

Berry Law was established in 1965. Over the decades, we have served thousands of Veterans from across the country. Call our firm to learn more about your rights as a Veteran.