Total Disability Based on Individual Unemployability (TDIU) benefits are a lifeline for Veterans who can no longer work due to service-connected disabilities and whose injuries have made it impossible to find or hold down a steady job. In simple terms, TDIU is a cash-based form of income replacement. It provides compensation at the same rate as a 100% disability rating—even if you don’t have any disability rated that high. Submitting a claim for these critical benefits is often easy, but meeting all of the requirements outlined by the U.S. Department of Veterans Affairs (VA) for approval could prove much more difficult.
Even though many Veterans have conditions that make it borderline impossible to work and support themselves, some don’t have the high ratings needed to obtain TDIU. However, under certain, limited circumstances, the VA will use extra-schedular ratings outside the standard system to give wounded warriors the boost they need to access TDIU benefits, even if their injuries don’t otherwise meet program criteria.
Understanding how the VA evaluates extra-schedular TDIU claims influences the outcome of your claim. Read more to learn about how an extra-schedular rating might help you qualify for TDIU, or contact Sean Kendall, Attorney at Law, to speak to an unemployability claims lawyer and schedule your 100% free, no-obligation consultation.
Schedular and Extra-Schedular Ratings
In terms of compensation and pay, extra-schedular TDIU benefits are identical to standard schedular TDIU benefits. The difference between the two programs lies in their requirements.
Most Veterans, for example, apply for and receive TDIU on the basis of an eligible rating or ratings; this is what the VA terms the “schedular’ basis for unemployability claims. As a general rule, you can only obtain schedular TDIU if you can establish that one of the following two statements is true:
- You have at least one service-connected disability that’s rated at least 60% or higher or;
- You have two or more service-connected disabilities. Of these, at least one disability must be rated at 40% or more, with a combined total rating at or above 70%.
In addition to this requirement, Veterans must typically prove their disability prevents them from obtaining a job or maintaining steady employment.
However, in some cases, Veterans with lower ratings can request an exception. If they demonstrate that their condition is sufficiently disabling, the VA might exercise its discretion to grant an extra-schedular rating. This process is more complex and involves slightly different evidentiary standards, but it provides an opportunity to obtain compensation when schedular eligibility isn’t an option.
Obtaining Extra-Schedular TDIU
Extra-schedular ratings—which are assigned at the VA’s discretion—are granted on a case-by-case basis. Here are some of the possible obligations that may be required for your case.
Present Evidence
Schedular and extra-schedular TDIU claims require that applicants be unable to either find or retain steady, gainful employment. If your injury isn’t obviously disabling, you may need to present evidence demonstrating your inability to work. This could include:
- Files from your service record
- Personal employment records, such as disciplinary reports and performance evaluations
- Buddy letters and statements from friends, family, and former comrades
- Letters from health care providers, like a doctor or mental health counselor
Most disability claims also require a service connection, or evidence that your disabling injuries were caused or worsened by an event that occurred during your military career. If none of your conditions are presumptive, you can ask your doctor for a nexus letter detailing their professional opinion.
In some cases, a vocational assessment or an independent medical evaluation could offer additional evidence for your extra-schedular TDIU claim.
Prove Your Unemployability
The VA defines this status quite differently than many people might expect. Being “unemployable” is a prerequisite for obtaining TDIU, but it doesn’t always mean that you cannot have a job or earn an income. You may be able to prove that your disabilities make you unemployable by:
- Presenting qualifying evidence.
- Explaining how the combined effect of your injuries makes it difficult for you to work.
- Obtaining tax returns and pay stubs showing that your income is below the federal poverty level.
- Arguing that your personal business or self-employment, even if very profitable, constitutes a protected or sheltered workplace.
Veterans who own businesses or work for themselves often struggle to prove they’re unemployable, with many VA determinations based on fine discrepancies in the legal definitions of different words and statutes.
Demonstrate Extenuating Circumstances
If you qualify for schedular TDIU, you typically apply on the basis of an individual or combined rating. However, if you don’t have high enough ratings to file for schedular TDIU, you’ll only receive benefits if you prove that your injury is more severe than the VA’s rating system reflects. You can do this in one of several ways:
- File a claim for an increased or revised rating.
- Appeal an adverse decision or benefits denial.
- Present additional evidence that wasn’t included with your original file or which you believe the VA misinterpreted.
The agency will only consider granting an extra-schedular rating if it agrees that you meet TDIU criteria and have exhausted all other methods of obtaining an appropriate rating. Furthermore, in making these determinations, the VA refers to federal code as well as its own departmental policies. The complexity of these rules makes securing benefits even more challenging, especially if your condition is unusual or your symptoms are unique.
Communicate and Remain Patient
As a general rule, extra-schedular ratings have to be approved by your regional VA office—and this will only happen if:
- Your current schedular evaluation doesn’t address your actual level of need.
- Your rating doesn’t reflect other facts, such as injury- or individual-specific impediments to employment, such as frequent hospitalizations or significant mobility restrictions.
- Your case meets all other requirements for TDIU claims.
Under federal law, the VA cannot typically expedite extra-schedular ratings or make a final determination until it’s done its due diligence and exhausted every possible alternative. While this approach helps the government reduce waste, it often causes long, frustrating delays for Veterans who are struggling to make ends meet.
What to Do Before Applying for Extra-Schedular TDIU
If your service-connected injuries make it difficult for you to find or hold down a job, you could be entitled to TDIU and other disability benefits. Sean Kendall, Attorney at Law, has spent more than 30 years helping Veterans across the country assert their rights.
However, arguing for TDIU can be complicated. It requires a review of your education, employment history, disabilities, and more. If you’re worried that your rating is too low to obtain TDIU, our team could help you:
- Secure the evidence that you need to show that your injuries impede your employment opportunities.
- Help your friends, family, and coworkers write effective testimonials describing how your disability impacts your life.
- Prepare for hearings.
- File an appeal against an unfair decision.
We understand that taking on the Department of Veterans Affairs is discouraging, especially when your income is on the line. Filing, fighting, and winning an extra-schedular TDIU claim can be difficult, but you don’t have to do it alone. We’re ready to help.
