Veteran Unemployability Claims
Veterans TDIU - Total Disability Based on Individual Unemployability
In its regulations, VA asserts that it is its policy that “all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.”
Substantially gainful occupation has been defined as an occupation that provides the veteran with an annual income that exceeds the poverty threshold for one person. Further, total disability exists “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.”
When a veteran is unable to work but the VA rating schedule does not permit a total disability rating, two opportunities remain to achieve a total disability rating: total disability based upon individual unemployability (TDIU) and under an extraschedular basis.
The first requires that a veteran to have a single disability rated at 60 percent or more and be unable to be gainfully employed as described above. Alternatively, a veteran with two or more disabilities present can also qualify if at least one is rated at 40 percent disabling or more with a combined rating of at least 70 percent.
The second approach is through a referral from the Regional Office to the Director, Compensation and Pension, for extraschedular consideration of a total disability rating. This means is available if the veteran’s disability percentage does not meet that for TDIU but he or she, nevertheless, remains unable by reason of service-connected disabilities to be gainfully employed. However, this method requires the presentation of an unusual or exceptional disability picture. This means that there should be evidence of marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards.
Under its regulations, VA may only consider the effects of service-connected disabilities upon a veteran’s ability to work. VA may not, under its regulations, consider the veteran’s age or effects of nonservice-connected disabilities in making this determination. When seeking a total disability rating a nonservice-connected disability may play a factor, it is critical to offer an expert medical opinion distinguishing the role service-connected disabilities play in the ability to work. In many instances the assistance of a vocational expert is necessary to demonstrate an inability to follow a substantially gainful occupation. The expense for this evaluation is small compared to the potential benefits to be attained with a total disability rating.
Marginal employment is defined as annual income that does not exceed the poverty threshold for one person. It is also important to note that many individuals who should be rated as totally disabled continued to work out of necessity or are able to remain in a protected environment, wherein special accommodations are made for the veteran’s disabilities. This can be construed as marginal employment as well. These facts, if present, should be carefully laid out to VA adjudicators because, too often, VA construes such employment as reflecting the ability to engage in substantially gainful employment.