VA Unemployability

The purpose of this blog is to discuss ways that a veteran without a 100% VA disability rating can use Total Disability/Individual Unemployability (TDIU) to achieve the same results. Although many veterans seek to qualify for a 100% disability rating based on one or more disabilities, the reality of reaching this goal is quite difficult based on the VA’s rating schedule. The reason for this difficulty is the fact that many disabilities do not have ratings criteria that reaches 100%, and for those disabilities that can be rated at 100%, the requirements to qualify are usually extremely narrow and subjective.

The formula used by the VA when combining more than one rating also makes the likelihood of reaching a 100% rating very difficult. For example, a veteran with one disability rated at 70% is considered by the VA as being 30% “non-disabled.” Any further disability ratings affects only the remaining 30% portion of the veteran. Therefore a 70% rating combined with a 70% rating is not a 140% rating. It is 70% + 21% (30 X .70) = 90% (91% is rounded down to 90%). As one can see, as a veteran nears a 100% rating it will take higher and higher additional ratings to increase the veterans overall rating even by 1% on the combined scale.

Because a 100% schedular rating is so difficult to reach for most veterans, an alternative mechanism called TDIU is also used by the VA. TDIU helps veterans, who are no longer employable due to their service connected disabilities, to achieve a 100% service connected rating, even though their schedular disability rating is lower than 100%.

Although most disabled veterans have heard of TDIU, there exists many misconceptions about TDIU and how to utilize TDIU effectively. The most common misunderstanding about TDIU is that it is a separate claim. In fact, TDIU can be considered in conjunction with an underlying claim for an increased evaluation. An additional misconception is that TDIU only applies to individuals with particular disabilities or rating levels.

When determining TDIU, the VA can only consider service connected disabilities and their effect on a veteran’s ability to obtain and maintain gainful employment. Any disability, no matter how severe, which is not service connected cannot be a basis for TDIU. Besides being determined solely upon service connected disabilities, TDIU traditionally can be considered only if:

1. The veteran has one service connected disability rated at 60% or higher; or
2. If the veteran has a combined service connected disability rating of 70% and at least one disability rated at 40%.

When considering the single disability rating requirement of 60% or 40% as discussed, the VA will often miss the fact that many types of disabilities can be grouped together and treated as a single disability. For example, disabilities to both arms or both legs can be combined and treated as a single disability for purposes of TDIU. In addition, multiple disabilities that arose out of a single disease or accident can also be combined into a single disability for the purpose of TDIU.

Beyond the “schedular” application of TDIU, which requires ratings of 60% for a single disability and 70% for multiple disabilities (at least one disability rated at 40%), VA regulations also provide for consideration of “extraschedular” TDIU, when there is a single disability that does not meet the minimum rating requirements but the veteran is still unable to maintain gainful employment. For example, a veteran who suffers a single disability of the back may have a rating of 40%. This rating on its own would not reach the rating requirements for schedular TDIU; however, this veteran may still not be able to stand, sit or walk for sufficient amounts of time to allow the veteran to maintain gainful employment. Because the rating criteria does not allow for a higher rating for the back, and the veteran cannot maintain gainful employment, the regulations provide an extraschedular mechanism for the VA to grant TDIU. In this example, the veteran does not meet the minimum rating requirement for traditional TDIU, however, because a veteran cannot maintain gainful employment due to a service connected disability, the VA may grant TDIU if the veteran files for a rating increase and proves he is unemployable.

The bottom line is that veterans have alternative pathways of achieving a 100% disability rating. Many times the VA does not adequately consider these alternatives and it is important that denied claims are appealed and the claim is developed properly with evidence showing how the veteran’s disabilities prevent the veteran from obtaining and maintaining gainful employment. If a veteran cannot work due to one or more service connected disabilities, the veteran is entitled to Total Disability/Individual Unemployability (TDIU).