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Basic Facts About IU (Individual Unemployability) in a Veterans VA Compensation Claim

Veterans always have questions about the VA disability compensation benefit known as UI. Also known as TDIU (Total Disability – Individual Unemployability), and sometimes as TD (Total Disability).

What is TDIU?

Most veterans mix up their terminology when referring to this benefit. However, all veterans have the same understanding of what this benefit is. When your service-connected compensation does not adequately compensate you for your service-related military injuries, you can request that the VA give you a 100% rating.

There are 2 ways to do this. Below I explain the BASIC eligibility criteria for both forms of TDIU: software and extra-software.

1) TDIU schedule

When a veteran seeks a rating of total disability, or IU (individual unemployability), the veteran most often refers to Scheduled TDIU.

It is available when a veteran meets one or both of the following 2 eligibility criteria:

a) ONE service-related disability with a rating of 60% or more; or,

b) 2 or more service connected conditions: one of which is rated as 40% and the combined total percentage, using VA Math, is 70% or more.

When one or both of these criteria are met, the VA regional office is supposed to consider the TDIU program.

However, they often fail to do so (this may result in an earlier effective date for some veterans who discover the error later in the appeals process).

Additionally, the VA often requires a veteran to submit a VA Form 21-8940 before status will be considered.

This is not legal – they are required to consider the Schedular TDIU claim with or without a VA Form 21-8940.

However, veterans have to wonder if it’s a battle worth fighting. If a veteran believes they are unemployed due to a service-connected medical condition, or believe they will eventually prove unemployable, they should only file VA Form 21-8940 as soon as possible, to any place of appeal process.

The VA Regional Office will most likely miscalculate the Veterans Effective Date when there is a claim for scheduled TDIU, so be sure to consult a VA Accredited Veterans Benefits Attorney whenever you receive a decision from qualification awarded by TDIU; the attorney can review this decision and your C.-File to determine if the Effective Date was calculated correctly.

2) TDIU Overtime

Again, this is very general information. I could – and probably someday will – write a book about TDIU Extra Schedular. It is not a legal concept that is easy to understand or apply to veterans, VSOs, solicitors, barristers and BVA judges alike.

Since there are many myths about what it takes to get a qualifying decision granting an extra-scheduled TDIU, I will give a very BASIC overview of these types of claims.

The VA says its policy is to qualify veterans as 100% disabled when they cannot secure employment because of a medical condition, disability or illness that makes them unemployable. In short, if a veteran is unable to work due to the consequences of their military injury (combat or not), then the VA can determine them to be “unemployable.”

This is true regardless of the percentage of your service related to medical conditions, illnesses or disabilities. If a veteran has a 10%, or 30% (or any %) disability rating, but is unemployable because of that disability, they may be eligible for “Extra-Schedular” TDIU.

In order to obtain a VA rating decision granting extra-program TDIU, the veteran must demonstrate that his service-connected rating does not adequately compensate him for the loss of what is called “wage earning capacity.”

In short, the veteran will need to demonstrate that his medical condition presents such an exceptional or unusual picture that it makes application of the VA rating schedules inappropriate. The VA evaluator will require that you provide evidence of unique circumstances that show that your medical condition, disability, or illness makes you unemployable.

Why is such a unique presentation required? Because the law presumes that the qualifying schedule adequately compensates for the loss of earning capacity.

Therefore, when a veteran with a 30% rating for condition X claims that he is unemployable because of that condition, then the veteran will have to show why his situation is so unique that his 30% rating is inappropriate

Here are 5 factors the VA should consider (and in some cases should not consider) in an extrascheduled TDIU claim:

Factor no. 1: Proof of receiving Social Security disability for the same condition that the VA determined did not merit a 100% rating.

Factor #2: Conditions not connected to the service. Most veterans are unaware that the VA cannot take into account non-service-connected disabilities when trying to determine whether or not a veteran is eligible for EXTRA-SCHEDULE TDIU.

Factor #3: Education and Employment History. The VA often gets this wrong: they think that because one is more educated they cannot get extra-scheduled TDIU, especially when the veteran’s education or experience is in a sedentary or non-physical line of work.

For example, suppose a veteran is an accountant. Monday works as an accountant, although his service-related conditions affected his daily work activities.

If the veteran is suddenly unable to work on Tuesday, the VA is often tempted to conclude that the situation is temporary or, because she is recently employed and highly trained, she can find work elsewhere.

VA logic, while not “wrong” in theory, is wrong in its application. The focus of the question of entitlement to extrascheduled TDIU is the totality of the veteran’s current circumstances, not speculation about what the future might hold for a highly educated veteran or a veteran with a recent and long work history.

Factor 4: When a veteran’s frequent hospitalizations (for a service-connected condition or conditions) affect his or her ability to obtain employment, the VA regional office must consider those hospitalizations in an extrascheduled TDIU claim.

Factor no. 5: Although it often does, the VA may not take age into account when evaluating unscheduled IUD.

As you may know, proving entitlement to extra-scheduled TDIU is a difficult road.

Most veterans will need an expert opinion from a professional or occupational expert or a competent treating physician. The BVA often rules that a veteran cannot offer an opinion, as a layperson, who is unemployed because of a service-related condition.

What makes an extraprogram TDIU claim even more difficult is that the VA Regional Office and the BVA do NOT have the authority to award extraprogram TDIU. Only the director of the VA Pension and Compensation Service can make a final decision on this claim. This is one of the reasons why extra-scheduled UI claims take so long to decide.

bottom line

Consider claiming BOTH forms of TDIU (or UI, as it’s often called) when you believe your medical conditions, illnesses, or service-connected disabilities make you unemployable.

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