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Veterans may be able to obtain a total disability benefit – even though the VA has rated their service-connected disabilities at less than 100 percent. The VA allows a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for veterans whose service-connected disabilities render them unable to get or keep substantially gainful employment.
VA 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 ratings for VA service-connected disabilities might combine to less than 100 percent.
To qualify, a veteran’s claim or appeal must show that he or she is unable to obtain or maintain a substantially gainful occupation 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, 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 retirement age can obtain TDIU if, regardless of their age, 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 environment, then the veteran may still be entitled to a TDIU. 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—a job that earns only a minimal amount of income—is not substantially gainful. The VA will find that an income below the poverty threshold ($12,880 for a single-family household in 2021) 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 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 a TDIU.
There are special rules that allow a veteran to combine multiple service-connected disabilities together to count as “one” disability for purposes of obtaining a TDIU. 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 that makes steady employment impractical. If a veteran does not meet the disability rating thresholds 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.
To obtain a TDIU from the VA, a veteran’s claim or appeal must complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. It is important that the veteran complete this complicated form fully and include the requested medical and employment history. A knowledgeable attorney can review your Form 21-8940 to help ensure that it is done correctly and you have the best chance at obtaining a TDIU.
In addition, the veteran’s application should include:
If you are unable to earn a living but the VA has not granted you a 100 percent disability rating, you may be able to obtain a TDIU benefit. Berry Law Firm can help you determine if you meet the qualifications and help you seek a TDIU.
Attorneys at Berry Law Firm are veterans who help veterans pursue the VA disability benefits they have earned. We appeal wrongly decided claims on behalf of vets nationwide before VA Regional Offices, the Board of Veterans’ Appeals, U.S. Court of Appeals for Veterans Claims, and higher courts as necessary. Our attorneys have litigated VA disability claims that have helped establish case law and change VA policies to help not only our clients but all disabled veterans.
Founder John S. Berry, Sr. is a Vietnam veteran, and John S. Berry, Jr. is a veteran of Operation Iraqi Freedom and Operation Joint Forge (Bosnia). Many other members of our firm are military veterans or family members as well.
Founded in 1965, Berry Law Firm has helped thousands of veterans get the disability benefits they have earned.
If you are a military veteran eligible for a TDIU, Berry Law Firm would like to discuss your VA claim with you.
The VA has accredited the lawyers of Berry Law Firm to represent veterans seeking disability benefits, and we have obtained millions of dollars in compensation for thousands of veterans. We concentrate on appealing existing claims to obtain higher disability ratings and additional compensation for veterans treated unfairly by the VA disability compensation system.
Several of our attorneys are military veterans, including John S. Berry, Sr., who is a Vietnam veteran, and John S. Berry, Jr., who fought in Bosnia and Iraq. We are veterans serving veterans.
If you deserve a better VA disability benefit, we want you to have it. We do not charge legal fees until we obtain benefit payments for our clients.
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“I came to Berry Law, and they really helped me. I like helping other veterans, and Berry Law does such a damn good job. They know the system…’cause everything just has to be just so worded, so correct, till you throw it out… So, I owe a lot to Berry Law.”
– Larry Sabata, Army Veteran
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