TOTAL DISABILITY BASED ON INDIVIDUAL UNEMPLOYABILITY
Total disability based upon individual unemployability - TDIU - is an extraordinary remedy available to veterans who do not meet the 100% disability requirement, but who are otherwise unable to secure a "substantially gainful occupation". In these instances a veteran may be awarded TDIU and receive monthly disability compensation benefits as if rated 100% even though the veteran has not received an 100% disability rating.
The TDIU Approach to Disability Compensation
The normal disability formula bases the dollar amount of monthly benefits on the percentage awarded. This percentage is determined on an average impairment of the ability to work. If a veteran receives a 30% disability rating for a service connected medical condition, the VA had found an average veteran suffering from the same medical condition would be 30% disabled for VA purposes. It is an analysis which looks at a broad spectrum of all veterans. From it an average composite is created from which the disability regulations are based.
TDIU bases the monthly compensation on the specific veteran's ability or lack thereof to work. To understand it another way, TDIU is an acknowledgement by the VA that even though the veteran, because of his or her specific conditions unique to the veteran, is not entitled to an 100% disability rating, overall objectively, there are subjective reasons unique to the individual veteran which allow the VA to assign to him a 100% disability rating. The VA focuses on the veteran as an individual, and not on how his or her medical condition measures up against an average composite of all other veterans.
Basic Requirements to TDIU
In order to qualify for TDIU consideration, the veteran must meet two threshold requirements. These are:
1. Is the veteran unable to secure, or follow substantially gainful occupation as a result of a service
connected disability or disabilities?
2. If the veteran has only one service-connected disability, is it rated at or above 60%? Or, if the
veteran has a combined disability of 70% or more, is one of the disability ratings at least 40%?
If so, the veteran is entitled to consideration for TDIU.
If it is awarded, a TDIU award may be temporary or permanent depending on the facts involved.
Claims for TDIU are judged on a case by case basis. Each veteran's life is remarkably different. Accordingly, the awards are as unique. They are entirely fact specific.
Occasional lapses in employment due to incapacity caused by the disability / disabilities often is not sufficient to trigger TDIU consideration. The VA examines the veteran's employment history, current employment status, and annual income from work amongst a host of other things.
A Substantial Gainful Occupation
The primary focus for an award of TDIU is whether the veteran can "secure a substantial gainful occupation".
As a backdrop the VA reviews the veteran's earnings, his type of job skills, and the area in which he lives. The VA then compares the veteran's earnings to the earnings of a person likewise situated who does not suffer from the veteran's disability / disabilities.
Marginal employment, which is normally defined as a job which generates an income less than the poverty threshold as defined by the Census Bureau, is not considered "substantial gainful employment". Accordingly, the veteran does not have to prove he is 100% unemployable. Establishing a veteran earns less than the poverty level is a significant step in establishing the first requirement. [However, in some instances such a when the veteran works for a family business or sheltered workshop - known as a "protected environment" - the veteran may earn more than the poverty threshold amount and still qualify for TDIU consideration.]
Extraschedular TDIU
In some instances the veteran may meet the first requirement [lack substantial gainful employment], but yet fail to meet the second requirement [a single 60% disability rating or 70% with multiple disabilities with one exceeding 40%]. In such an instance, the veteran may still be entitled to consideration for TDIU. This is based in the policy of the VA to rate all veterans as 100% disabled who are unemployable because of their service connected medical disabilities regardless of the percentage awarded.
Normally, the VA must find the specific case presents such an exceptional or unusual disability picture the regular disability scheduler standards are not practical. Normally, the veteran's disabilities markedly interfere with employment or the veteran's frequent hospitalizations make employment not workable. In such extremely rare instances, the claim is referred to the Secretary's designated official to consider the claim on a special, unique basis.
Non-Factors
Although the focus is on the unique characteristics of veteran's situation, things which would seem reasonable to be considered are expressly not considered. These include the veteran's age, whether elderly or youthful, as well as the veteran's non-service connected disabilities.
Obviously a veteran's age and his non-service connected disabilities impact his ability to have "substantial gainful occupation". However, the VA will not consider such in its determination and the veteran's advocate must be able to compartmentalize veteran's medical conditions in order to persuade the VA of veteran's entitlement to TDIU. The VA, in fact, will have expressly to explain in its decision a differentiation between the service-connected and non-service connected disabilities.
Factors to be Considered
The VA will consider the veteran's level of education, as well as his occupational history. However, a well-educated veteran who was recently employed may not be denied TDIU simply because he or she is well-educated and recently employed. The focus should be on the present status of the veteran's predicament.
The VA additionally must examine the veteran's Social Security Administration disability benefits records if the veteran is receiving those benefits. The determination of disability for gainful employment by the Social Security Administration is relevant to the award of TDIU.
As in every case, the "benefit of the doubt" always leans in favor of the veteran's claim. This is equally applicable to distinguishing between the effects of service-connected and non-service connected disabilities.
