Individual Unemployability Is Not Always Unemployment

According to the Bureau of Labor Statistics, US unemployment in December of 2016 remained steady, stalling at 4.7 percent. Veterans make up 424,000 of the unemployed – seven percent of the total. Not all of these unemployed veterans are receiving TDIU benefits that may be available to them from the Department of Veterans Affairs.

Under 38 C.F.R. § 4.16, a veteran qualifies for TDIU (Total Disability Based on Individual Unemployability) if they have a 60 percent rating for at least one individual disability, rendering them unable to maintain substantially gainful employment. A veteran also meets the percentage requirement if they have a combined rating of at least 70 percent with at least one of their disabilities rated as 40 percent disabling.

The word “unemployability” is somewhat misleading because a veteran does not have to be 100 percent unemployed to qualify for TDIU. The phrase “substantially gainful employment” does not include marginal employment, meaning employment earnings that fall below the poverty level as established by the U.S. Department of Commerce, Bureau of the Census. For 2017, that amount is $11,880. If a veteran makes above the poverty threshold but can only work in a “protected environment,” such as a family business or sheltered workshop, the same rules apply.

So if a veteran is only able to work a job that makes less than $11,880 a year as a result of service-connected disabilities or if they are only able to work because a family member has agreed to employ them, he or she may still qualify for TDIU. A veteran may qualify for extra-schedular TDIU if they don’t meet the percentage requirement.

Under the TDIU extra-schedular regulation (found in 38 C.F.R. § 4.16(b)), if a veteran does not meet the percentage requirement but is unable to maintain substantially gainful employment because of service-connected disabilities, he or she may qualify based on these circumstances. The VA considers factors such as employment history, educational and vocational attainment, and all other factors possibly related to employment.

In extra-schedular rating cases, the VA must find that the veteran’s service-connected disabilities present “such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” See 38 C.F.R. § 3.321(b).

If going to work is a constant struggle due to your service-connected disabilities, you should consider applying for TDIU. You served your country – now it’s time for your country to serve you.

Berry Law’s experienced team of veterans’ benefits attorneys fight for your rights. Many of our advocates and staff are veterans themselves and know what it’s like to be stuck in a never-ending loop of appeals and denials. If you want someone on your side who knows the ins and outs of the VA disability process, please call or contact us online today.