Eligibility for TDIU
A veteran can be eligible for TDIU in two ways:
- The veteran's ratings can make him or her eligible if he or she has:
- A single disability rated at 60 percent or more
- Two or more disabilities with a combined rating of at least 70% and at least one disability rated at 40 percent
- The Regional Office can refer the veteran's claim to the Director, Compensation and Pension, for extraschedular consideration of a total disability rating.
- This option is available if the veteran's ratings do not meet the ratings requirements above, but he or she, nevertheless, cannot be gainfully employed because of service-connected disabilities.
- 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.
Making the TDIU Argument
Arguing for TDIU can be complicated. It requires a review of the veteran's education, employment history, disabilities, and more.
Under its regulations, VA may only consider the effects of service-connected disabilities upon a veteran’s ability to work. VA may not consider the veteran’s age or effects of nonservice-connected disabilities in making this determination. When seeking a total disability rating and the veteran has a nonservice-connected disability that may affect employment, it is critical to give the VA an expert medical opinion distinguishing the role service-connected disabilities play in the ability to work. In many instances, a vocational expert opinion is also necessary to demonstrate the veteran's inability to follow a substantially gainful occupation. The expense for these evaluations 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 continue 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.
Speak With a TDIU Lawyer About Unemployability Benefits
Attorney Sean Kendall and his team of TDIU lawyers work with U.S. Veterans residing around the United States and abroad. Our team is innately familiar with the complexities of unemployability. If you are having trouble accessing the benefits you believe you are legally entitled to receive due to service-connected disabilities, please contact our firm today at (877) 629-1712. We will be happy to assist you.