Berry Law can help qualifying disabled Veterans appeal or reopen their existing disability claims and seek TDIU benefits. We work with disabled Veterans nationwide to obtain all compensation they are due from the Department of Veterans Affairs. Contact our office today!
Do I Qualify for VA Individual Unemployability Benefits if I Cannot Obtain Substantially Gainful Employment?
A Veteran who is unable to obtain and maintain “substantially gainful employment” due to one or more service-connected disabilities are entitled to a TDIU. A TDIU provides compensation equal to a total disability rating, even though the combined disability rating for VA service-connected disabilities might be less than 100 percent.
To qualify for TDIU benefits, a Veteran’s VA disability claim or appeal must show that he or she is unable to obtain or maintain substantially gainful employment because of the physical or mental impairments caused by service-connected disabilities.
There are two important parts to this analysis: (1) whether the Veteran can get and keep work, and (2) even if the veteran can or does work, whether that work is considered substantially gainful.
In determining a Veteran’s ability to get or keep a job, the VA must consider not only the Veteran’s functional impairments due to service-connected disabilities but also the particular Veteran’s education, training, work history, and expertise. The Veteran’s age is not a factor—thus, even a disabled Veteran who is of retirement age can obtain TDIU benefits if their service-connected disabilities would still prevent them from working a substantially gainful job.
Even if a Veteran can or does work, if that work is not considered substantially gainful or is in a protected work environment, then the veteran may still be entitled to TDIU benefits. Work is substantially gainful if it allows the Veteran to earn a living on par with a nondisabled person typical of the industry and location.
Marginal employment is not substantially gainful. Marginal employment is defined as a job that earns only a minimal amount of income. The VA will find that an income below the poverty threshold ($14,580 for a single-person household in 2023) is not substantially gainful. It is possible that a job with a higher income might not be substantially gainful, but that decision is up to the particular reviewer or judge in a Veteran’s case.
A job that a Veteran can keep only because of significant accommodations by the employer is in a protected work environment. If a Veteran could not obtain or keep a substantially gainful job outside of a protected environment, then he or she may be entitled to VA TDIU benefits.
A VA Regional Office and the Board of Veterans’ Appeals can grant a VA TDIU if a Veteran meets the qualifications above and:
- Has at least one service-connected disability rated at 60 percent or more
- Has multiple disabilities, at least one of which must be rated at 40 percent or more and, when combined, earn a combined rating of 70 percent or more
There are special rules that allow a Veteran to combine multiple service-connected disabilities together to count as “one” disability for the purposes of obtaining TDIU benefits. Because these rules are very complicated, it is best to have an experienced attorney review your case to determine whether a TDIU is a possibility.
The VA will also consider TDIU benefits for veterans who do not meet the minimum disability rating requirements if they demonstrate exceptional or unusual circumstances. For example, their disabilities might directly interfere with their employability or require frequent hospitalization, which makes steady employment impractical. If a Veteran does not meet the disability rating thresholds mentioned above but is still unable to secure or follow a substantially gainful occupation, then the VA must refer the case to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether a TDIU is proper. If the Under Secretary or Director decides against the Veteran’s claim, the Veteran can appeal that decision.