For veterans who are wondering, “Do I qualify for TDIU?” due to their service-connected disabilities, there might be some relief. If granted, TDIU grants 100 percent disability benefits to the veteran even if his or her disabilities do not add up to 100 percent under the rating schedule. However, it can be difficult to obtain TDIU for several reasons.
To qualify for TDIU, a Veteran must be unable to maintain substantially gainful employment because of his or her service-connected disabilities. The term “substantially gainful employment” can be troublesome, as we will explore when talking about potential complications in qualifying for TDIU. However, the idea is that “marginal” employment, such as infrequent contracting work or odd jobs, would not satisfy the standard for substantially gainful employment and a Veteran could still qualify for TDIU.
There are three ways to show that the veteran’s service-connected disabilities are severe enough to qualify for TDIU.
Extra-schedular consideration is difficult to qualify for, but it can be done. Extra-schedular TDIU can be granted for exceptional or unusual disabilities, such as disabilities which frequently land a Veteran in the hospital or make employment impractical. The circumstances would be unique, as most disabilities which are severe enough to qualify would do so under the rating schedule. However, it is not impossible to show that an under-qualified disability renders working impossible. One way to show this would be through Social Security disability. If a Veteran is receiving Social Security disability benefits for a service-connected disability, it is likely that they are unemployable for VA purposes.
There are a few reasons why a Veteran who cannot work would be denied TDIU. One of the most common problems is the distinction between being out of work and being unable to work. This comes back to what the VA considers “substantially gainful employment.” Just because a Veteran is unable to work in his or her preferred occupation does not mean they are unable to secure substantially gainful employment for VA purposes. For instance, if a Veteran worked as construction worker from the time they separated to the time their service-connected disability rendered them unable to work, the VA might consider them capable of working a desk job.
Often, this is flawed logic on the part of the VA. What they consider to be “capable of securing substantially gainful employment” can stretch the bounds of reason. In the above example, how likely is it that a lifetime construction worker would be able to suddenly switch gears and land a computer programming job? The VA should consider the skill set of the Veteran in evaluating their claim for TDIU, but too often they wind up focusing on the physical ability of the Veteran instead of the reality of their employability. What the VA considers simple accommodations that would render a Veteran able to work are often burdensome and unrealistic.
A Veteran can combat the VA’s assumption that they are employable by obtaining letters from former employers, providing statements from doctors about their disabilities as they relate to a work environment, or even providing their own statements about their struggles to find employment. There is no “wrong” way to substantiate a claim for TDIU, so Veterans should feel free to get creative. As long as the evidence shows unemployability, it might be the key to having this benefit granted.
If the evidence demonstrates that a Veteran is unable to secure substantially gainful employment because of service-connected disabilities, the VA should infer a claim for TDIU. To apply for TDIU, a Veteran can submit VA Form 21-8940. This form asks questions about work history and income as they relate to service-connected disabilities.
Berry Law Firm represents veterans seeking VA disability benefits nationwide. If you’re asking yourself, “Do I qualify for TDIU?” our team of veterans’ law attorneys may be able to help you. Contact us today.
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