How to Win Your VA TDIU Claim

VA TDIU stands for “Temporary Disability Individual Unemployability.”

Did you know that disabled veterans who qualify for TDIU are entitled to be paid at the 100% VA disability rate, even if they are rated below 100 percent scheduler, if they can establish that one or more service-connected disabilities prevent them from maintaining substantially gainful employment?

Click HERE to read about facts and myths of TDIU claims.

What Is Substantially Gainful Employment?

Substantially gainful employment means a veteran is earning above the poverty level, which is defined by the U.S. Department of Commerce, U.S. Census Bureau, as the poverty threshold for one person.

The 2018 rate indicates that a veteran making less than $13,064 a year is earning below the poverty line.  

If you’re currently working, continue reading about “marginal employment” in this post below.

Do I Qualify for TDIU?

To establish entitlement to a total disability rating for compensation based on individual unemployability (TDIU), the Veteran must be unemployable in fact (unable to secure or follow substantially gainful employment) by reason of service-connected (SC) disability and either

  • Meet the schedular requirements of 38 CFR 4.16(a), or
  • Have an extra-schedular TDIU evaluation, under the provisions of 38 CFR 4.16(b), approved by Compensation Service. 

Note:  TDIU is also referred to as total disability based on individual unemployability (TDIU).

References:  For more information on

What is Unemployable vs. Unemployed?

Being unemployable and being unemployed are not synonymous for the purpose of determining entitlement to an TDIU rating under 38 CFR 4.16.

A Veteran may be unemployed and even have a history of unemployment from several jobs, but not be incapable of substantially gainful employment (unemployable).  Unemployment can be due to economic factors, work performance issues, or other reasons and not necessarily related to being unable to secure or follow substantially gainful employment due to an SC disability. 

A Veteran might also be unemployed from one job due to an SC disability, but still be capable of securing or following another substantially gainful occupation. 

Substantially gainful employment is defined as employment at which non-disabled individuals earn their livelihood with earnings comparable to the occupation in the community where the Veteran resides.  It suggests a living wage. 

Substantially gainful employment is

  • Competitive (not protected) employment, and with
  • Earnings exceeding the amount established by the U.S. Department of Commerce, U.S. Census Bureau, as the poverty threshold for one person.

Reference:  For more information on the definition of substantially gainful employment, see

What is Marginal Employment?

Marginal employment exists

  • When a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, U.S. Census Bureau, as the poverty threshold for one person, or
  • On a facts-found basis, and includes, but is not limited to, employment in a protected environment, such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 

Important

  • Marginal employment is NOT substantially gainful employment. 
  • Do not consider amounts received from participation in the Veterans Health Administration’s Compensated Work Therapy Program as income for TDIU purposes.  

Reference:  For more information on the poverty threshold, see M21-1, Part IV, Subpart ii, 2.F.6.  
38 CFR 4.16(a)
 does not limit consideration of marginal employment to only those Veterans who are currently employed.

If the evidence or facts reflect that a Veteran is capable only of marginal employment, then the Veteran is incapable of securing or following a substantially gainful occupation and is therefore entitled to TDIU if the Veteran’s SC disabilities are the cause of that incapability.

When the facts of a case indicate that the Veteran’s ability to work might be limited to marginal employment, a rating decision must address whether or not the Veteran is incapable of no more than marginal employment due to an SC disability, even if the Veteran is not employed at the time.

Reference:  For more information on the appropriate circumstances in which to consider marginal employment, see Ortiz-Valles v. McDonald, 28 Vet.App.65 (2016).

General Evidence Requirements in TDIU Claims

A decision concerning entitlement to an TDIU evaluation in accordance with 38 CFR 3.34038 CFR 3.341(a), and 38 CFR 4.16 is based on a review of all available evidence, which should be sufficient to evaluate the,

  • Current severity of the SC disability that the Veteran states and/or the evidence indicates prevent(s) substantially gainful employment
  • The impact of SC disability upon employability, and
  • Employment status. 

The rating activity must review all evidence and assign corresponding weight as directed at M21-1, Part III, Subpart iv, 5.A, including but not limited to evidence concerning the Veteran’s 

  • Current employment status
  • Past employment history, and
  • Functional impairment arising from SC disabilities as shown by
    • Examinations
    • Department of Veterans Affairs (VA) or private medical evidence, and
    • Lay evidence

Forward a VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, to the Veteran if a request for TDIU is

  • Expressly raised by the Veteran, or
  • Reasonably raised by the evidence of record.

Important

  • When written communication or other evidence indicates the Veteran cannot work because of SC disabilities and a standard application for benefits with a specific claim for TDIU has not been received, but the criteria to consider the information a reasonably raised claim has not been met due to the Veteran’s disabilities not meeting the schedular criteria specified under 38 CFR 4.16(a), follow the request for application procedures at M21-1, Part III, Subpart ii, 2.C.6.
  • A Veteran’s statement of having been terminated from his or her employment may only reasonably raise a claim for TDIU if the Veteran indicates that termination was due to an SC disability.

References:  For more information on

What is a VA Form 21-8940?

A substantially complete VA Form 21-8940 is required to establish entitlement to TDIU because it gathers relevant and indispensable information regarding a claimant’s disabilities and employment and educational histories.  The form concludes with a series of sworn certification statements, and in endorsing it, a Veteran

  • Attests to his/her employment status, and
  • Signals understanding of the TDIU benefit’s incompatibility with substantially gainful work.  

A properly signed and executed VA Form 21-8940 enables VA to gather the information necessary to determine the Veteran’s entitlement to TDIU and recover TDIU compensation that is later discovered to have been awarded on fraudulent terms.

While a substantially complete VA Form 21-8940 is necessary to provide VA with information needed to substantiate entitlement to TDIU, it is not necessary to raise the issue of TDIU.  VA must decide on TDIU when the issue is

  • Explicitly raised by the Veteran, or
  • Reasonably raised by the evidence of record. 

If TDIU is raised and the Veteran fails to complete and return VA Form 21-8940, VA must make a decision on the issue of TDIU in a rating decision based on the available evidence of record and may deny entitlement as described in M21-1, Part IV, Subpart ii, 2.F.4.n.

Important:

  • If the issue of TDIU is raised by the Veteran or reasonably raised by the evidence of record and the only VA Form 21-8940 of record was received as part of a finally adjudicated claim, a new VA Form 21-8940 must be provided to the Veteran.  
  • VA Form 21-8940 must be signed by the Veteran and not a third-party source such as a power of attorney.

Reference:  For more information on criteria for substantially complete applications, see M21-1, Part I, 1.B.1.b.

Medical Evidence and Examination Requirements in TDIU Claims

A claim for TDIU must contain sufficient medical evidence to support a current evaluation of the SC disabilities alleged by the claimant to be causing unemployability. 

The evidence should reflect the Veteran’s condition within the past 12 months and include, but need not be limited to

  • The results of VA examination(s)
  • Hospital reports, and/or
  • Outpatient treatment records.

Important:  A medical examination is not automatically required in every TDIU claim.  An examination is required if the information and evidence of record do not contain sufficient competent medical evidence to decide the claim. 

VA Form 21-8940 requires the Veteran to furnish an employment history for the last five years that he or she worked.  In determining whether the Veteran provided work history information for the required time period, review the entries in Blocks 14 and 15 on the VA Form 21-8940.

Note: The minimum required work history, for the purpose of requesting employment information from the Veteran’s employer(s), must include the last year of employment.
 
Important:  If the Veteran fails to provide employment history, the evaluation of the underlying issues claimed to cause unemployability must still be adjudicated even though the claim for TDIU may result in denial.  A claim for TDIU may not be freestanding and must be associated with consideration of increased evaluation or original service connection for the underlying disabilities claimed to cause unemployability. 

References:  For more information on

VA Considerations When Deciding TDIU

When deciding an TDIU claim, the rating activity must consider

  • The Veteran’s current physical and mental condition
  • The Veteran’s employment status,including the
    • nature of employment, and
    • reason employment was terminated, and
  • Whether
    • the disability requirements set forth in 38 CFR 4.16 are met, or
    • extra-schedular consideration under 38 CFR 4.16(b) is warranted.

When assessing the competence, credibility, and weight of evidence, no single factor has inherently more weight than another in determining the outcome of an TDIU rating decision once the evidence shows that the Veteran is no longer gainfully employed. 

A decision maker must consider all factors contextually.  Assignment of weight for the different factors is and must remain contingent upon the entire evidentiary picture as found in the individual TDIU claim.  Examples of relevant factors include (but are not limited to)

  • The impact of the SC disabilities, individually and in combination, on current work functioning
  • Occupational history, including
    • marginal employment (past or present)
    • self-employment (past or present)
    • past employment, and/or
    • factors contributing to discontinuation of employment, and
  • Educational history, including
    • past educational achievement, and/or
    • current educational endeavors.

Important:  Do not defer a decision as to the schedular degree of disability pending receipt of evidence sufficient to adjudicate the issue of TDIU.

References:  For more information on

Determine whether the severity of the SC disabilities precludes the Veteran from securing or following substantially gainful employment. 

Factors that do not affect TDIU determinations

The following factors have NO bearing on a determination of whether SC disability renders a Veteran unemployable:

  • Age
  • NSC disabilities
  • Injuries occurring after military service
  • Availability of work, or
  • Voluntary withdrawal from the labor market.

Reference:  For more information on the discussion to include in the rating decision, see M21-1, Part IV, Subpart ii, 2.F.4.p.

Considering Occupational History in TDIU Claims

A Veteran’s occupational history is not determinative of the outcome of a claim for TDIU unless the Veteran is currently gainfully employed.  However, occupational history is a factor that must be weighed in decision making.  In weighing the relevance of occupational history in claims for TDIU, consider the factors below.

  • When a Veteran is currently working or the evidence shows the Veteran is capable of working but unemployed, determine whether the ability to sustain employment is marginal as discussed at M21-1, Part IV, Subpart ii, 2.F.1.d and e.
  • Consider the difference between unemployment and unemployability as discussed at M21-1, Part IV, Subpart ii, 2.F.1.b.
  • Voluntary retirement is not necessarily determinative of the outcome of an TDIU decision.  The underlying impact of the Veteran’s disabilities on the discontinuation of work is the relevant determination. 
  • As noted in M21-1, Part IV, Subpart ii, 2.F.2.i, SSA decisions are not determinative of the outcome of TDIU decisions.  However, a Veteran’s application for and/or receipt of SSA disability benefits is a factor to weigh in decision making. 
  • TDIU may be granted on a temporary basis as noted in M21-1, Part IV, Subpart ii, 2.F.4.g.
  • When a Veteran is self-employed, follow the procedures at M21-1, Part IV, Subpart ii, 2.F.3.

Reference:  For more information on weighing evidence in rating decisions, seeM21-1, Part III, Subpart iv, 5.A.

Considering Multiple Disabilities in TDIU VA Claims

Under certain circumstances, multiple disabilities may be considered one disability for the purpose of meeting the requirements of 38 CFR 4.16(a).

As stated in 38 CFR 4.16(a), for the purpose of meeting the requirement of having one 60-percent or one 40-percent disability, the following will be considered as one disability:

  • Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable
  • Disabilities resulting from common etiology or a single accident
  • Disabilities affecting a single body system
  • Multiple disabilities incurred in combat, or
  • Multiple disabilities incurred as a former prisoner of war.

Important

  • In determining whether the Veteran’s SC disabilities meet the schedular requirement as stated in 38 CFR 4.16(a), all SC disabilities will be considered.  This determination is not restricted to only those SC disabilities that cause or contribute to unemployability.
  • The common etiology provisions of 38 CFR 4.16(a)(2) apply to disabilities arising from the same type of exposure event during service. Examples of exposure events include (but are not limited to) disabilities arising from herbicide exposure in Vietnam under 38 CFR 3.309(e) or multiple undiagnosed illnesses granted under 38 CFR 3.317
  • The common etiology provisions of 38 CFR 4.16(a)(2) apply to a primary SC disability and other disabilities for which SC is established as secondary to or aggravated by the primary disability under 38 CFR 3.310.
  • Consider multiple disabilities of the musculoskeletal system as one disability because the multiple disabilities affect a single body system or multiple gunshot wounds as the result of combat serve as one disability because the multiple disabilities were incurred in combat.

Example:  A Veteran is SC for diabetes mellitus at 40 percent, right shoulder arthritis at 30 percent, ulcerative colitis at 30 percent, and posttraumatic stress disorder (PTSD) at 30 percent.  The combined disability evaluation is 80 percent.  The evidence demonstrates that all SC disabilities, except for diabetes mellitus, cause or contribute to rendering the Veteran unable to secure or maintain substantially gainful employment.

Result:  TDIU would be awarded under 38 CFR 4.16(a), as the Veteran meets the schedular requirements of the regulation (combined disability evaluation of at least 70 percent and one disability, diabetes mellitus, rated at least 40 percent). 

Rationale:  The regulation does not require that the 40-percent disability specifically cause or contribute to the unemployability when multiple SC disabilities are present and collectively render the Veteran unemployable.

Why TDIU claims get denied

Deny entitlement to TDIU only if the facts demonstrate that the Veteran

  • Is not precluded from securing or following substantially gainful employment by reason of SC disability
  • Is gainfully employed, or
  • Has failed to cooperate with development, such as failing to return a completed VA Form 21-8940 when requested.

Reference:  For more information on continuing a total evaluation based on TDIU, see 38 CFR 3.343(c).

Need Medical Evidence to Prove Your TDIU Claim?

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