Applying for TDIU Benefits

Posted by Berry Law on June 5, 2024 in TDIU

For many Veterans, the journey toward receiving the benefits they deserve can be a long and arduous one. Service-connected disabilities can deeply impact a Veteran’s ability to secure and maintain gainful employment, leaving them feeling helpless and uncertain about their future. This is where Total Disability based on Individual Unemployability (TDIU) benefits come into play, offering a lifeline to those who have sacrificed so much for their country.

To qualify for TDIU benefits, a Veteran must demonstrate that their service-connected disabilities prevent them from obtaining or maintaining substantially gainful employment. This determination is not solely based on the disability rating but also considers the Veteran’s education, training, work history, and expertise. Even Veterans of retirement age can be eligible for TDIU benefits if their service-connected disabilities would still prevent them from working a substantially gainful job.

Understanding TDIU Benefits

Even if a Veteran does not meet the criteria for a 100% disability rating, they may still be eligible for TDIU benefits. This provision recognizes that some Veterans, despite having a disability rating below 100%, are unable to secure or follow a substantially gainful occupation due to their service-connected conditions. TDIU provides additional compensation to these Veterans, acknowledging the significant challenges they face in the workforce.

VA Disability Rating System and TDIU

The VA disability rating system assigns percentage ratings from 0% to 100% based on the severity of a Veteran’s service-connected conditions. This rating reflects the level of impairment and how much the disabilities interfere with the Veteran’s ability to function.

A 100% disability rating represents a total disability – meaning the Veteran’s service-connected disabilities are so severe that they render the Veteran completely impaired and unable to maintain any form of gainful employment.

For most Veterans, having a single disability rated at 100% qualifies them to receive the maximum schedular compensation from the VA without needing to apply for TDIU benefits specifically.

However, TDIU allows Veterans with disabilities that result in a combined rating of less than 100% to receive compensation at the 100% rate if they can show that their service-connected conditions prevent them from obtaining and maintaining substantially gainful employment.

The VA rating schedule outlines the criteria for each disability and corresponding percentage ratings. Veterans can have multiple disabilities rated separately, which are then combined using VA math to calculate a combined disability rating.

To meet the TDIU requirements without having to go the extra-schedular route, a Veteran must have:

• At least one disability rated at 60% or higher, OR
• Multiple disabilities with one rated at least 40% with a combined rating of 70% or higher

Even if a Veteran doesn’t technically meet those percentage requirements, they can still apply for TDIU on an extra-schedular basis if their service-connected disabilities truly prevent substantially gainful employment.

The disability ratings system is complex, so guidance from an experienced VA benefits lawyer can be extremely valuable in ensuring Veterans receive the proper ratings and compensation they deserve.

The Role of a Lawyer in Securing TDIU Benefits

A knowledgeable VA disability benefits attorney can guide Veterans through the intricate process of how to apply for TDIU benefits. They can ensure that all necessary forms and documentation are properly completed, including VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). More information about form 21-8940 is available on the VA website.

To fill out Form 21-8940, a Veteran will need the following information:

• A list of the Veteran’s service-connected disabilities that prevent them from working, as well as the dates of any treatment the Veteran received for those disabilities, the names and addresses of the Veteran’s treating physicians, and any records of hospitalizations.
• The date the Veteran last worked full-time, and the date the Veteran became too disabled to work. (Keep in mind that TDIU is based only on service-connected disabilities.)
• The names and addresses of all employers for the last five years the Veteran worked, including self-employment. The Veteran will need to know the type of work, hours worked per week, dates of employment, time lost from illness, and highest gross earnings per month.
• Names and addresses of any employers where the Veteran attempted to gain work since becoming too disabled to work.
• Any schooling or training that the Veteran has received.

VA disability benefits lawyers can assist with gathering records. Streamlining the process can maximize the chances of a successful claim. A lawyer can also advocate for a Veteran’s rights and represent them in the event of a denied claim or the need for an appeal. They understand the nuances of the VA’s rating system and can build a compelling case.

Gathering Evidence for TDIU Claims

To establish eligibility for TDIU benefits, Veterans must provide substantial evidence to support their claims. This evidence will help demonstrate the Veteran’s inability to secure substantially gainful employment due to their service-connected disabilities. Evidence may include:

• Medical Records: Records of VA medical exams, VA treatment records, private treatment records, and statements from the Veteran or others familiar with the Veteran’s disabilities. These records can help the VA evaluate the Veteran’s current physical and mental condition.
• Employment History: A detailed account of the Veteran’s work history, including the five years before becoming too disabled to work. This should include information about employers, positions held, hours worked, time lost due to illness, and highest gross earnings.
• Rehabilitation Records: If the Veteran has undergone vocational rehabilitation through the VA’s Vocational Rehabilitation and Employment Service (VR&E), these records can support the claim by demonstrating unsuccessful or medically unfeasible rehabilitation attempts.
• Social Security Disability Records: If the Veteran receives Social Security Disability benefits, these records can provide additional supporting evidence when combined with other documentation.
• Expert Opinions: A lawyer may enlist the services of medical professionals and vocational counselors to examine the Veteran and provide expert opinions on their ability to maintain substantially gainful employment.

Service Connection and Applying for TDIU Benefits

Qualifying for TDIU benefits does require having one or more service-connected disabilities. The key requirement is that the Veteran is unable to secure or follow a substantially gainful occupation because of their service-connected disabilities.

Presumptive conditions can play a role in establishing service connection for disabilities that may then lead to eligibility for TDIU benefits. Here are some key points about presumptive conditions and TDIU:

• Disabilities that are presumed to be service-connected (such as certain chronic diseases becoming manifest within a year of discharge) can potentially be used to meet the service-connection requirement for TDIU.
• There are also presumptive conditions based on certain exposures during service (e.g. Agent Orange, radiation, etc.) These presumptively service-connected conditions stemming from exposures can enable a pathway to TDIU if the Veteran cannot maintain substantially gainful employment because of them.

However, the presumption alone does not automatically qualify a Veteran for TDIU. Service-connected disabilities, whether directly or presumptively service-connected, must still be shown to cause unemployability.

Marginal Employment and Protected Work Environments

Even if a Veteran can work, their employment may not be considered substantially gainful. Jobs that earn only a minimal income or require significant accommodations from the employer are known as protected work environments. Veterans may still qualify the Veteran for TDIU benefits with this type of employment. A skilled lawyer can argue that such employment does not constitute substantially gainful work, strengthening the case for TDIU eligibility.

Effective Dates and Retroactive Benefits

The effective date for TDIU benefits is often the date the Veteran submitted VA Form 21-8940, not the date of approval. A lawyer can help Veterans establish an accurate effective date, potentially resulting in significant retroactive benefits. This financial assistance can provide much-needed relief for Veterans who have been struggling financially due to their service-connected disabilities.

Ongoing Support and Advocacy

Even after a successful TDIU claim, a lawyer can continue to provide valuable support and advocacy for the Veteran. Recipients of TDIU benefits must complete an annual VA employment questionnaire until they reach the age of 69, confirming their continued lack of substantially gainful employment. A lawyer can assist with this process and ensure the Veteran remains compliant with VA regulations.

The road to receiving TDIU benefits can be long and arduous, but with the right legal representation, Veterans can navigate this journey with greater confidence and ease. By understanding the complexities of the VA disability system and advocating tirelessly for their clients, lawyers can empower Veterans to secure the benefits they rightfully deserve.

Contact Berry Law When Applying for TDIU Benefits

Contact Berry Law to take the first step toward securing financial security by consulting with an experienced VA disability attorney. Our experienced attorneys guide Veterans through the TDIU application process, alleviate the burden of navigating complex regulations, and provide the compassionate support they need during this challenging time.

For many Veterans, the inability to work and provide for themselves and their families can be a devastating blow to their sense of self-worth and independence. The emotional toll of being unable to contribute financially and feeling like a burden on loved ones can be immense. TDIU benefits not only provide financial assistance but also offer a sense of validation and recognition for the sacrifices made during their service.

Attorneys at Berry Law are Veterans who help Veterans pursue the VA disability compensation benefits they have earned. Call our legal team at 888-883-2483 or fill out our online contact form. We represent Veterans in all 50 states and our legal team is available 24/7.