Posted by Gregory M. Rada | June 21, 2019 | Disability Compensation
Sustaining gainful employment is the way most people financially support themselves and their families. Upon discharge, most veterans are able to find and sustain employment without issue, and many veterans work for years without experiencing any negative side effects of their service. However, over time, they may find themselves unable to work because of injuries or conditions that resulted from active duty, yet they may not qualify for a combined 100 percent disability rating from the Veterans Administration (VA).
The rating a veteran receives is directly tied to the amount of compensation he/she will receive, so a veteran unable to work, but who do not have a combined 100 percent rating, are at a disadvantage. Fortunately, to account for the gap in coverage, the VA is able to assign a “Total Disability rating based on Individual Unemployability” (a TDIU), which means the VA recognizes a veteran is unable to work because of a service-related condition(s) and therefore pays the veteran at the 100 percent payment rate, regardless of the veteran’s actual combined rating.
Being able to earn an income is critical to any sort of well-being, and when this ability is taken away, the consequences are dire. An overview of the TDIU process, and what a veteran needs to prove to qualify for benefits, will follow below.
Because TDIU benefits are based on a veteran’s ability to work, the disability rating he/she receives is not critical to securing a TDIU. As long as the veteran has a service-connected condition or conditions that prevent them from working, they qualify for a TDIU.
The VA often pretends a veteran is only eligible for a TDIU if they have a single service-connected condition rated at 60 percent or more or two or more conditions with one rated at least 40 percent and a combined rating of 70 percent, and VA commonly rejects TDIU claims just because the veteran did not meet the rating requirements.
However, even when a veteran does not meet the rating requirements, they are still eligible for a TDIU on an extraschedular basis if they can show that a service-connected condition or conditions prevent them from working. In other words, the only analysis that matters is whether a service-connected condition or conditions prevent the veteran from maintaining substantially gainful employment.
Each case is fact specific, but the VA generally considers substantially gainful employment as earned income above the Federal Poverty Level for a single person, approximately $1,000 a month. There are exceptions to this general rule though, such as where a veteran is working in a protected environment, often times a family business, and can’t be fired. In protected workplace situations, the veteran can earn above the poverty level and still be eligible for a TDIU.
It would be natural to assume that a TDIU would exclude a veteran from working at all. However, a veteran is permitted to engage in “marginal” employment as long as their earned income would not put the veteran above the poverty line. As described above, working for a family business in which the veteran cannot be fired is also not viewed as gainful employment.
The biggest issue veterans encounter with TDIU claims is proving they are unable to work. VA denies many claims based on a finding that the veteran can do sedentary work; however, this justification must be supported by both medical and vocational evidence. Veterans unable to sit for long periods would not qualify for sedentary jobs, which effectively puts them out of the job market. An opinion from a vocational expert supported by medical evidence is often crucial in proving unemployability. Vocational experts are experts in describing how a veteran’s service-connected impairments affect their ability to work in the national job economy. The VA often relies on medical opinions from VA medical examiners, but they are not qualified to provide a vocational opinion.
If you are struggling with a disability related to your military service and cannot work, get the legal help you need to receive a total disability rating based on individual unemployability. Gregory M. Rada, Attorney at Law focuses on fighting for the rights of disabled veterans and wants to help you get the benefits you need and deserve. I represent veterans nationwide. Contact me at (844) 838-7529 to schedule your free phone consultation.
Gregory Rada is a Veterans Benefits Attorney who practices Nationwide. He graduated from the University of Connecticut School of Law, and has been practicing law for six years. Gregory Rada believes in fighting for fellow veterans. Learn more about his experience by clicking here.