Legal Meets Practical

by Sarah Schauerte

In general, my blog addresses timely issues. However, this week I can’t resist covering a veterans issue that most people don’t know too much about – TDIU, or Total Disability Based on Individual Unemployability. I want this information out there, for veterans and family members struggling with their claims for disability compensation before the U.S. Department of Veterans Affairs (VA).

What is a TDIU Claim? 

As an every veteran with a disability rating knows, getting a 100% “schedular” disability rating is hard to do. A 100% “schedular” rating is achieved when a veteran’s disability ratings add up to 100%. But in VA Land, a 70% rating plus a 40% rating doesn’t equal 110% – it equals 80% because of how ratings are calculated. (See a helpful ratings calculator here).

In some cases, even if a veteran does not have a rating that adds up to 100%, he suffers from a disability that makes it impossible for him to work. In that case, the VA may assign a 100% rating because the veteran is totally disabled based on his individual unemployability (hence the term, “TDIU”).  The VA must first find the veteran suffers from an impairment that makes it impossible for him to maintain a substantially gainful occupation. Also, the veteran must have one service-connected disability that is at least 60%, or a total disability rating of at least 70%, with one rating as 40% or more.

Proving TDIU is very, very difficult; and a lot of this boils down to insufficiency of the evidence. The veteran should present solid evidence of his service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue.

This is a subjective assessment, and it depends on individual facts and circumstances. For example,  if the veteran is an IT programmer and suffers from terrible service-connected migraines that prevent him from doing his job or being retrained to perform similar work for which he is qualified, he might be TDIU. However, if the veteran is a manual laborer who is affected less by the migraines (to where he can still work), the VA might hold that he is not TDIU.

The VA has prepared a webpage that discusses the general requirements to prove a TDIU claim, which can be accessed here. Also, the regulation that spells out these requirements, 38 CFR 4.16, is here.

How to Make a TDIU Claim

A veteran may make a TDIU claim in one of two ways: 1) by claiming it in conjunction with an original service-connection claim; or 2) with a claim for increased evaluation.

If, in connection with a claim for increased compensation, the evidence of record shows evidence of unemployability, and the veteran meets the schedular criteria for TDIU, then the evidence reasonably raises a TDIU claim (which the VA must explore) even if the veteran doesn’t specifically state it himself. However, the veteran is far better off to raise the argument himself, rather than rely on the VA to make it.

If a veteran makes a claim for TDIU, he must complete a VA Form 21-8940. In doing so, a veteran with multiple service-connected disabilities must specify at least one disability as the reason for his unemployability.

The VA’s Process for Evaluating TDIU Claims

The VA will then follow the administrative procedures in place for processing a TDIU claim. These include sending VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefit) to the former employer(s) listed on the form for which the veteran worked during his last year of employment. The VA may also request either condition-specific Disability Benefits Questionnaires (DBQs) or a general medical DBQ when the VA determines that examinations are needed to decide the claim.

I highly encourage you to take a look at  the Fast Letter issued by the Director to all VA Regional Offices which revises and clarifies the VA procedures relating to claims for TDIU, which was issued on June 17, 2013. This is available here: VA Fast Letter 13-13. 

In general, keep in mind that while the VA has the duty to assist veterans applying for disability benefits (which includes TDIU), you as the veteran are your best advocate! Do your research before embarking on a TDIU claim, keep copies of everything sent to the VA, and make sure that you have built as solid a case as possible for your claim. This may include: submitting lay witness statements of co-workers who can offer personal observations of the effects of your disability on job performance, submitting medical evidence and opinions from doctors relating to your inability to work, and by timely responding to any VA requests for more information.

When you act as your own advocate, you increase your chances of receiving the benefits to which you are entitled.

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