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Important Tips – Filing an Application for TDIU With the VA

Tucker Law Group
January 4, 2021

If you are a veteran whose medical records do not show a rating of 100% disability, you may still qualify for TDIU (Total Disability based on Individual Unemployability).  You may receive the same amount of money as a veteran with a 100% disability rating if you can show you can’t work due to a service-connected condition.  Individual Unemployability is for veterans with a less than 100% combined rating.  

You should read Title 38 Section 4.16 of the Code of Federal Regulation, which governs Individual Unemployability.  There are two parts:

  • Section A, Schedular TDIU requires that you either have a single condition rated at 60% or more than one condition combining to 70% or more – with one of them rated at least 40%.  You have to show these conditions keep you from getting or keeping a job.  
  • Section B says you can still get TDIU if you cannot get or keep a job due to a service-connected condition.  You will need to explain to the doctors your limitations and how the restrictions and injuries involved are service-connected.  Note that injuries that are not service-connected will not be considered for TDIU.  

Also note that you can earn up to the poverty threshold and still get Individual Unemployability.  This is called marginal employment.  This number varies by the quantity of people in your household.  At the time of the video on 9-11-20, this amount was approximately $1,200 per month for a single person.  

It is also possible to still receive TDIU if you are employed by a family member or if you are receiving “sheltered employment”.  An example of sheltered employment would be when someone gives you a job that is created and intended only for you, for the purpose of giving you an income.  

The VA still must evaluate whether you are entitled to TDIU even if you are over normal retirement age.  Watch the video to learn more.  

At Tucker Law Group we handle TDIU cases every day. If you have a TDIU claim that has been denied, or if you have any additional questions, call Tucker Law Group at (866) 233-5044, or review our videos and media library for more information.  

Video Transcript
Things you need to know if you're going to file an application for Total Disability based on Individual Unemployability with the VA I'm John Tucker, and I'm a veterans disability attorney. Veterans call me all the time asking me how they get paid 100% disability from the VA, and very often they don't have the medical records to show that their rating should be 100% Schedular. And in other words, the ratings that should be assigned by VA would equal 100%. Instead, one of the things we're going to look at when we talk to a veteran is whether they're able to work. Individual unemployability is another way to get paid the same amount of money as a veteran rated 100%, if you can't work because of your service connected conditions. So the first thing you need to know is that IU, Individual Unemployability, is for veterans that are not rated 100% combined. You have a less than 100% rating.

Now the second one, the thing you need to understand is that Individual Unemployability is governed by a specific regulation, in Title 38 of the code of federal regulations. Section 4.16, you read it, it will help you understand what VA is looking for in terms of TDIU; Total Disability based on Individual Unemployability. Now there are two parts to 4.16. Under the first part you can get what's called Schedular TDIU. To get that, you either have to have one condition rated at 60% or multiple conditions combined at 70% with one of them, at least at 40%. And you have to be able to show that those conditions keep you from getting or keeping a job.

Now, section B of 4.16 says, even if you don't meet those Schedular requirements, you can get extra Schedular TDIU if the VA determines that you cannot get, or keep a job because of your service connected conditions. What's important about that is you're trying to prove to VA that no matter what your conditions, they prevent you from getting or keeping a job, and you do that by telling your doctors what kind of limitations you have, giving VA information about the limitations and restrictions you have your ability to do things, and how it's limited by the conditions that are service connected. Keep that in mind, it's only your service connected condition, so if your back's not service connected, but you had a car accident and your back is part of why you can't work, the VA won't look at that. They're only going to look at the things that are service connected.

A couple of other things to keep it keep in mind. Also you can work and get IU. You can actually earn up to the poverty line, they call it marginal employment in the regulation. And if you want to know how much that is just Google, what is the property threshold now? As I do this video, it's about $1,200 a month for a single person. The more people in your household, the larger that number. So if you earn less than that, you could still get TDIU. If you're employed by a family member or somebody else who's giving you what's called sheltered employment, you can still get TDIU also. That means if somebody made a job just for you, that nobody else in the world could have, only you, because they're really doing you a solid, so to speak, you can still get TDIU.

And finally, it doesn't matter how old you are. If you're over what we think of as normal retirement age, VA still has to evaluate whether you're entitled to TDIU. If you filed a claim for TDIU, Individual Unemployability, and it's been denied by VA, call the number on your screen, we can help you. I'm John Tucker. Thanks for watching.