What Veterans Need to Know About Working While Receiving TDIU
Total Disability Individual Unemployability (TDIU) benefits provide eligible veterans with cash compensation at the same rate as someone who is considered 100% disabled under schedular criteria. The TDIU program is intended to provide additional financial help to veterans with medical conditions that limit their ability to work even though they are not considered totally disabled under normal criteria.
One of the most common misconceptions about TDIU benefits is that you must be unemployed to quality. Even though the word “unemployability” is in the program title, you may still qualify if your job isn’t considered to be substantially gainful employment.
The first test of substantially gainful employment is your earnings. If you are earning more than a poverty-level wage in your position, it may be considered substantially gainful employment.
The exact poverty threshold changes every year, but earnings of less than $12,000 per year are generally considered to be poverty-level wages. Since a full-time minimum wage job would exceed this threshold, most veterans who qualify based on their earnings are only working minimal hours at part-time positions in industries such as retail or food service.
A veteran can be self-employed and receive TDIU. However, the veteran’s application won’t be approved based on earnings alone. Since self-employed individuals can control what they will be paid, a veteran's claim will be evaluated based on whether the services they perform and the hours worked are equivalent to substantially gainful employment for another business.
The most common type of self-employment associated with TDIU claims is odd jobs that are performed when a veteran's health permits such as landscaping or home repair.
Sheltered employment means that a veteran is working at a position that provides accommodations for their disability above and beyond what is required by law. Often, they are working for a friend or family member who is familiar with their service-connected disability and willing to make concessions to allow the veteran to remain employed.
Some examples of the criteria used to determine if a position is sheltered employment include:
- Having unlimited time off for medical appointments or personal needs
- Not being required to maintain a set work schedule
- Being excused from responsibilities that are normally part of the job such as interacting with customers
- Not having to meet the same productivity criteria as other employees
- Having other employees provide assistance with basic job duties
- Not being disciplined for tardiness or other infractions
- Being given extra break time due to fatigue or pain
If a veteran would be unable to complete the same job responsibilities at a company that did not provide special accommodations, their current position should be considered sheltered employment. A veteran with sheltered employment is eligible for TDIU even if they are working full-time and earning substantially more than a poverty-level wage.
Why You Need Experienced Legal Representation
VA disability claims are complex under the best of circumstances. TDIU applications are particularly challenging because there is more room for misinterpretation of the requirements. An experienced veterans benefits lawyer can help you gather the necessary evidence to support your claim, including documentation of your earnings, medical opinions regarding the nature of your disability, opinions from vocational experts, records from your application for Social Security disability benefits, and lay statements from coworkers or supervisors who can provide additional insight into your work history or continued job performance.
Legal representation is also beneficial when you have a college degree. Although the VA does consider your education and work history in awarding TDIU benefits, simply having a degree doesn’t mean you are able to work. If you are unable to work in specific work environments or perform tasks that are crucial to the type of work you are qualified to do, you need a lawyer who can ensure you’re not unfairly penalized for your education.
Do You Need to Speak With a Veterans Benefits Lawyer?
If you need to speak with an experienced veterans benefits lawyer, please contact us online, or call our Virginia Beach office to schedule your free consultation. We have offices throughout Virginia, including Chesapeake, Newport News, Norfolk, and Suffolk.
How the VA Determines TDIU Eligibility
Total Disability Based on Individual Unemployability: Eligibility and Special Considerations
If a service-connected disability has left you unable to work, you may qualify for Total Disability Based on Individual Unemployability (TDIU). This allows you to receive disability benefits at the same level as someone who has been assigned a 100% disability rating—even if the VA would not otherwise consider you 100% disabled.
It is rare for Veterans to receive a 100% disability rating, so TDIU is the most common way for Veterans to gain access to higher monthly benefits. Both physical and mental disabilities can potentially qualify for TDIU, as long as they are service-connected. If you have disabilities that are unrelated to your military service, they will not be considered when the VA evaluates your application.
Eligibility for TDIU
Typically, to qualify for TDIU, you must have at least one service-connected disability with a rating of 60% or higher. If you have two or more service-connected disabilities, they must have a combined rating of 70% or higher with one that is rated 40% or higher. However, an exception may be made if you have a lower disability rating with a condition that requires frequent and extended hospital stays.
TDIU benefits require you to be unable to hold down a steady job. Substantial gainful employment is determined as earning more than the poverty level for a single person. Poverty level guidelines vary from year to year, but anything less than $12,000 per year is generally considered to be a poverty-level wage.
If you meet the basic disability rating and earning criteria, the VA will examine your work history to determine what type of job you could reasonably be expected to perform. This includes looking at your skills and education. For example, someone who has only performed manual labor involving heavy lifting and has no college degree would be unlikely to be able to find employment in a sedentary office position.
Please note that age is not a consideration when applying for TDIU. Although age is considered when applying for Social Security disability benefits due to the difficulty older workers have in training for a new position, the VA does not consider age in awarding any type of disability benefit.
The VA will review applications from Veterans who are working in protected positions on a case by case basis. A protected position is one where special accommodations are being made for the Veteran’s disability, such as working at a small business owned by a family member or friend. If the accommodations are extensive enough that the Veteran could not be expected to hold substantial gainful employment at a similar business, TDIU may be approved even if the Veteran’s earnings exceed the poverty threshold.
Applicants who are self-employed can also expect to have their work history looked at closely. The VA doesn’t allow TDIU claims from self-employed individuals to be approved based on low wages alone because someone who is self-employed can choose what salary they will receive. Claims will be evaluated based on whether the hours worked and type of services performed would equate to substantial gainful employment for another business.
Filing for TDIU
To file for TDIU, you must add two additional forms to the standard application for VA disability benefits:
- Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940). This form asks for information about recent work, earnings, and education.
- Request for Employment Information in Connection With Claim for Disability Benefits (VA Form 21-4192). This form requests information about your recent employment and should be filled out by your past employers.
Receiving TDIU can be a complex and time-consuming process, but help is available. The office of Sean Kendall, Attorney-at-Law, has more than 20 years of experience helping Colorado Veterans access the VA disability benefits they need to provide for themselves and their families. Call our office today or fill out the contact form on this page to schedule a free, no-obligation initial consultation.
Applying for TDIU Benefits
You can apply for Total Disability based on Individual Unemployability (TDIU) benefits by filling out a three-page form commonly referred to as the 8940. Officially known as the VA Form 21-8940, this serves as the application for TDIU.
Applying for TDIU benefits requires answering questions about what disabilities are preventing you from working, your work history, medical information like what doctors you have been seeing as well as whether you have been hospitalized, and your level of education. In other words, you must demonstrate why you are unable to maintain substantially gainful employment as a result of your service-connected disabilities.
Where Can Veterans Apply for TDIU Benefits?
Most veterans applying for TDIU benefits have already applied for and received some type of disability compensation from the Department of Veterans Affairs (VA). It is the same type of procedure and may be completed online through VA systems, through a veteran service organization, by going directly to VA, or by requesting assistance from an attorney.
Providing Medical Records
Most of the time, former servicemembers seeking TDIU benefits identify medical providers on the 8940 form and list records which have not already been obtained by VA. If those medical records are at a VA facility, then the agency could obtain those without any additional permission from the veteran. If they are at a private facility, like a doctor’s office, the veteran would also need to fill out a separate form that allows VA to obtain those medical records.
A veteran should apply for general disability before they apply for TDIU benefits. While they could apply for both at the same time, it is more unusual to do so. The disability rating that a former servicemember receives – which could be anywhere from zero percent to 100 percent – serves as the foundation for the award of TDIU, and that rating needs to be in place already or applied for at the same time as TDIU.
In other words, the application for TDIU is part and parcel of the underlying claim for benefits, although the application may be filed at any time. The award of TDIU may be based on one or more service-connected conditions, but a veteran must be rated for at least one condition to be approved.
How Long Does it Take to Receive TDIU Benefits after Applying?
After applying for TDIU, it can take anywhere from two months to a year for a veteran to receive an initial decision. Every case is different, and some are more complex than others. The process is different for every veteran, which is why there is such a disparity between the time-frames for a former servicemember applying for TDIU. It’s also important to note that many TDIU applications are denied, and the appeals process for obtaining TDIU can be lengthy.
Since TDIU is part and parcel of the underlying claim for benefits, a veteran may also choose to file the form for TDIU during an appeal. The time frame for any appeal varies widely, depending on the type of appeal chosen and at what level the appeal is taken.
Some of the issues that commonly delay an initial TDIU decision include not listing an address for an employer or a medical provider or failing to sign the form that allows VA to obtain those records. Veterans should also be sure to keep their contact information up to date with VA, including their phone number and address, since VA commonly needs to request additional information during the TDIU determination process.
5 Mistakes to Avoid When You’re Seeking TDIU Benefits
If you are struggling to maintain suitable employment due to your service-connected disabilities, you may be eligible for Total Disability Individual Unemployability (TDIU) benefits. To increase your chances of being approved, there are some common mistakes you should avoid.
Mistakes to Avoid When Applying for TDIU
Veterans benefits attorneys agree that the following mistakes will jeopardize an otherwise valid TDIU claim:
- Not listing all of your service-connected disabilities. If you have one condition that causes significantly more symptoms on a day-to-day basis, it’s tempting to only list that disability when applying for TDIU. However, you should list all of your service-connected conditions to give the VA a full picture of the challenges you are facing.
- Including non-service-connected disabilities. Regardless of their severity, the VA can’t consider the effects of your non-service-connected disabilities when evaluating your TDIU application. This makes them irrelevant to your claim.
- Minimizing your symptoms. Now is not the time to try to be “tough” by downplaying your struggles. Be completely honest about your level of impairment—even if talking about your symptoms makes you feel uncomfortable.
- Maintaining full-time employment. If you’re currently working full-time, you won’t qualify for TDIU unless you can prove your job qualifies as a protected work environment or sheltered employment. If you’re able to maintain employment at the time of your application, the VA will assume you can continue to do so.
- Submitting insufficient evidence of impairment. In addition to medical evidence, statements from family, friends, coworkers, and supervisors can provide support for your claim that your condition limits your ability to work. Employment records and testimony from vocational experts can also be very helpful in building a strong claim for benefits.
Request a Consultation
If you are having trouble working due to a service-connected disability and think you might qualify for TDIU benefits, the office of Sean Kendall, Attorney-at-Law, is here to help. Contact us today to request a consultation to discuss what our Veterans benefits attorneys can do to help you access the benefits you need to provide for yourself and your family.
VA Individual Unemployability if you can't work
You’ll need to file a claim for disability compensation. When you file, you’ll have to provide evidence (supporting documents like a doctor’s report or medical test results) showing that your disability prevents you from holding down a steady job. We’ll also review your work and education history.
Example: A Veteran has a service-connected heart condition and a 60% disability rating. She was still able to work until last year when she began to get chest pain when doing anything physical, like walking or lifting boxes. Her doctor told her to retire as soon as possible. She filed a claim for more disability compensation. We reviewed her work and education history and agreed that she was individually unemployable because of her service-connected disability. So we increased her disability compensation to the same rate as a 100% disabled Veteran.
Find out how to file a claim for disability compensation
When you file a disability claim, you’ll also need to fill out these additional forms for Individual Unemployability benefits:
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