Why the 40/70 Rule Doesn’t Determine TDIU Eligibility – What Really Matters

Posted by Gregory M. Rada | February 25, 2025 | Firm News

Veterans seeking Total Disability based on Individual Unemployability (TDIU) benefits often encounter the “40/70 rule” in VA regulations. This rule outlines specific disability rating thresholds for schedular TDIU consideration. However, it’s crucial to understand that not meeting these percentages doesn’t automatically disqualify a veteran from obtaining TDIU benefits.

Table of Contents

• Understanding the 40/70 Rule
• Schedular TDIU Criteria
• Extraschedular TDIU Consideration
• Key Takeaways

Understanding the 40/70 Rule

The “40/70 rule” refers to the VA’s schedular criteria for TDIU eligibility:

• Single Disability: One service-connected disability rated at least 60% disabling.
• Multiple Disabilities: Multiple service-connected disabilities with a combined rating of 70% or more, with at least one disability rated at 40% or higher.

These thresholds are designed to identify veterans whose service-connected disabilities significantly impair their ability to secure and maintain substantially gainful employment. However, these percentages are not the sole pathway to TDIU benefits.

Schedular TDIU Criteria

Meeting the “40/70 rule” allows a veteran to be considered for TDIU on a schedular basis. This means that if a veteran’s service-connected disabilities meet these rating thresholds and prevent them from maintaining substantially gainful employment, they may be eligible for TDIU benefits. It’s important to note that “substantially gainful employment” refers to employment that provides an income above the poverty threshold (based on a single person regardless of family size) and is not considered marginal.

Extraschedular TDIU Consideration

Veterans who do not meet the “40/70 rule” percentages can still qualify for TDIU through an extraschedular evaluation. According to VA regulations, if a veteran’s service-connected disabilities render them unable to secure and follow a substantially gainful occupation, the VA must consider them for TDIU, regardless of their disability ratings. This involves a comprehensive review of the veteran’s unique circumstances, including the impact of their disabilities on daily life and employment, even if their combined rating is below the schedular criteria. Ultimately, the only criterion necessary to qualify for a TDIU rating is having a service-connected disability that prevents the veteran from maintaining substantially gainful employment.

Key Takeaways

• The “40/70 rule” provides schedular criteria for TDIU but is not an absolute requirement.
• Veterans not meeting these percentages may still be eligible for TDIU through extraschedular consideration.
• The primary factor for TDIU eligibility is the inability to maintain substantially gainful employment due to service-connected disabilities.

If you’re a veteran unable to work due to service-connected disabilities, it’s essential to explore all avenues for TDIU benefits, regardless of your current disability ratings. For personalized assistance and to discuss your specific situation, schedule a free consultation today.