Veterans always have questions about the VA Disability compensation benefit known as IU. It is also known as TDIU (Total Disability – Individual Unemployability), and sometimes as TD (Total Disability).
What is TDIU?
Most Veterans mix 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 in-service military injuries, you can request that the VA grant you a 100% rating.
There are 2 ways to do this. Below, I explain the BASIC eligibility criteria for both forms of TDIU: Schedular and Extra-Schedular.
1) Schedular TDIU
When a Veteran seeks a Total Disability Rating, or IU (Individual Unemployability), the Veteran most commonly refers to Schedular TDIU.
It is available when a Veteran meets one or both of the following 2 eligibility criteria:
a) ONE service-connected disability rated at 60% or more; or,
b) 2 or more service-connected conditions – one of which is rated as 40%, and the total combined percentage, using VA Math, totals 70% or higher
When one or both of these criteria are met, the VA Regional Office is supposed to consider Schedular TDIU.
However, they often fail to (this can lead to an earlier effective date for some Veterans who discover the error later in their appeals process).
Moreover, the VA often requires that a Veteran file a VA Form 21-8940 before they even consider the condition.
This is not lawful – they are required to consider the claim for Schedular TDIU with or without a VA Form 21-8940.
However, Veterans have to ask if it is a battle worth fighting. If a Veteran thinks that they are unemployable because of a service-connected medical condition, or think they will eventually prove they are unemployable, they should just file the VA Form 21-8940 as soon as possible, wherever in the appeal process you are.
The VA Regional Office will most assuredly miscalculate the Veterans Effective Date when there is a claim for Schedular TDIU, so be sure to consult a VA accredited Veterans Benefits attorney whenever you get a ratings decision granting TDIU – the attorney can review that decision and your C-File to determine if the Effective Date was properly calculated.
2) Extra-Schedular TDIU
Again, this is very general information. I could – and probably will someday – write a book on Extra Schedular TDIU. It is not a legal concept that is easily understood or applied by Veterans, VSOs, lawyers, advocates, and BVA judges alike.
Because there are a lot of Myths about what it takes to get a Ratings Decision granting extra-schedular TDIU, I am going to give a very BASIC overview of this type of claim.
The VA says that its policy is to rate veterans as 100% disabled when they are not able to secure employment due to a medical condition, disability or illness that renders them unemployable. In short, if a Veteran can’t work because of the consequences of their military injury (combat or non-combat), then they can be determined “unemployable” by the VA.
This is true regardless of the percentage of their service connected medical conditions, illnesses, or disabilities. If a Veteran is rated 10%, or 30% (or any %) disabled, but is unemployable due to that disability, they may be eligible for “Extra-Schedular” TDIU.
To get a VA Rating Decision granting extra-schedular TDIU, the Veteran will need to show that their service-connected rating does not adequately compensate them for the loss of what is called a “Wage Earning Capacity”.
In short, the Veteran is going to have to show that their medical condition presents such an exceptional or unusual picture that it renders the application of the VA Rating Schedules inadequate. The VA Rater is going to require that you provide evidence of unique circumstances that show that your medical condition, disability or illness renders you unemployable.
Why is such a unique showing required? Because the law presumes that the rating schedule adequately compensates for loss of wage-earning capacity.
So, where a Veteran is rated 30% for Condition X claims she is unemployable due to that condition, then the Veteran is going to have to show why her situation is so unique that her 30% rating is inadequate.
Here are 5 factors that the VA should (and in some cases, should not) consider in an extra-schedular TDIU claim:
Factor #1: Proof of receipt of Social Security Disability for the same condition that the VA determined did not merit a 100% rating.
Factor #2: Non Service-Connected Conditions. Most Veterans don’t know that the VA can’t consider non-service-connected disabilities when trying to determine whether or not a Veteran is entitled to EXTRA-SCHEDULAR TDIU.
Factor #3: Education and Employment History. The VA often messes this up – they think that because one is more educated that they can’t get extra-schedular TDIU, particularly when the Veteran’s education or experience is in a sedentary or non-physical line of work.
For example, let’s say a Veteran is an accountant. She is employed as an accountant on Monday, even though her service-connected conditions affected her daily work activities.
If, all of a sudden, the Veteran is unable to work on Tuesday, the VA is often tempted to conclude that the situation is temporary or, because she was recently employed and highly educated, she can find employment elsewhere.
The VA logic, while not “wrong” in theory, is wrong in its application. The focus of the question of entitlement to extra-schedular TDIU is the totality of the Veteran’s present circumstances – not speculation about what the future MIGHT hold for a highly educated Veteran or a Veteran with a recent and long employment history.
Factor #4: When a Veteran’s frequent hospitalizations (for a service-connected condition or conditions) affects his or her ability to gain work, the VA Regional Office has to consider those hospitalizations in an extra-schedular TDIU claim.
Factor #5: Though it often does just this, the VA may not consider age in the evaluation of extra-schedular TDIU.
As you might be able to tell, proving entitlement to extra-schedular TDIU is a hard path.
Most Veterans will need an expert opinion from a Vocational or Occupational expert or a competent treating physician. The BVA often rules that a Veteran is unable to offer an opinion – as a lay person – that he is unemployable due to a service-connected condition.
What makes an extra-schedular TDIU claim even harder is that the VA Regional Office and the BVA DO NOT have the authority to award extra-schedular TDIU. Only the Director of the VA Compensation and Pension Service may make a final decision on this claim. This is one reason that extra-schedular IU claims take a very long time to decide.
Consider claiming BOTH forms of TDIU (or IU as it is often called) when you believe that your service-connected medical conditions, diseases, or disabilities render you unemployable.