Your Guide to VA Benefits: Total Disability Individual Unemployability (TDIU)

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“I had a VSO manager tell me flatly, he said, It’s a waste of my time for you to file that claim on your behalf. And I just threw my arms up in the air and I said, I’m done.”

– Terry V., Army Veteran

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TDIU VA Disability Benefits for Service-Connected Disabilities

Veterans may be able to obtain a Total Disability Individual Unemployability (TDIU) benefit even if 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 for Veterans whose service-connected disabilities render them unable to get or keep substantially gainful employment.

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 is 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.

What If I Can Do Some Work? Will That Affect My Eligibility?

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

These are scheduler requirements. Special rules 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.

Extraschedular TDIU

In addition, Veterans may also petition for an extraschedular disability rating, which may result in a higher rating than the one the Veteran would have received with a schedular rating. This may be an option if you feel the schedular rating doesn’t adequately take into account the severity of your condition.

The VA will 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.

Effective Dates

Keep in mind that the VA often assigns the effective date as the date you sought your unemployability benefits and submitted VA Form 21-8940. If the VA grants you individual unemployability, you may receive considerably higher retroactive benefits if you can properly establish your effective date. It’s important to discuss your case with an attorney to find out how this applies to you.

Total and Permanent Disability

The VA recognizes two designations of disabilities that are not expected to improve: total and permanent. Permanent means the disability will continue for the rest of the Veteran’s life, based on medical evidence. The VA typically considers the Veteran’s age when determining permanent status, so younger Veterans may have a harder time proving their disability is permanent.
For total disability, the VA relies on a rating schedule to determine how much the disability interferes with the Veteran’s ability to function. A 100% rating means the Veteran is totally disabled.
However, it’s possible for a permanent disability to be rated below 100% if it’s not total. Likewise, it’s possible to have a total disability that is not permanent. If you have both a total and permanent disability, you may receive additional benefits besides your monthly compensation, and it cannot be reduced.
If the VA determines you have both a total and permanent disability, they may indicate that on your form by checking the “Permanent and Total” box or state “no further exams are necessary,” or something to that effect. They may also send you a letter stating you are eligible for Chapter 35 DEA or CHAMPVA benefits. It’s also possible that a total disability could become permanent if you received TDIU benefits for more than 20 consecutive years.

How Do I Prove Eligibility for VA TDIU for My Service-Connected Disability?

To obtain VA TDIU benefits, a Veteran 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 so you have the best chance at obtaining TDIU benefits.

In addition, the Veteran’s application should include:

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How Do I Seek TDIU VA Disability Compensation?

If you are unable to earn a living but the VA has not granted you a 100 percent disability rating, you may still be able to obtain TDIU benefits. Berry Law can help you determine if you meet the qualifications and help you seek a VA TDIU.

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A Law Firm of Veterans Serving Veterans

Attorneys at Berry Law are Veterans who help Veterans pursue the VA disability compensation benefits they have earned. We appeal wrongly decided claims on behalf of Vets nationwide before VA Regional Offices, the Board of Veterans’ Appeals, the 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.

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Founder John S. Berry, Sr. is a Vietnam Veteran, and John S. Berry, 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 has helped thousands of Veterans get the VA disability benefits they have earned.

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Let Our Experienced Litigators Help You Seek TDIU Benefits

If you are a military Veteran eligible for VA TDIU, Berry Law would like to discuss your VA claim with you.

The VA has accredited the lawyers of Berry Law to represent Veterans seeking disability benefits, and we have obtained millions of dollars in compensation for thousands of Veterans nationwide. 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, , who fought in Bosnia and Iraq. We are Veterans serving Veterans.

If you deserve better VA benefits or a higher disability rating, 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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