The VA awards Total Disability for Individual Unemployability (TDIU) in situations where the veteran does not have an actual rating of 100 percent, but they are unable to “secure or follow a substantially gainful occupation as a result of service-connected disabilities.” 38 CFR 4.16(a) An award of TDIU brings the veterans rating to 100 percent without adding more disabilities or seeking an increase in current disabilities. Ratings for TDIU are based on the “average impairments of earning capacity.” 38 CFR 3.321(b)(1)
Employment Rules for TDUI Veterans
A veteran cannot have substantially gainful employment and receive TDIU, however, marginal employment is not considered substantially gainful employment. Generally, employment is considered marginal when the veteran’s earned annual income is lower than the poverty threshold established by the U.S. Department of Commerce, Census Bureau. But the VA may also award TDIU if the veteran’s income is above the poverty threshold based on the totality of facts. For example, employment may be considered marginal if the employment takes place in a protected work environment such as a family business, the veteran may be eligible for TDIU. 38 CFR 4.16(a)
The VA has not defined “protected environment”, however, in Cantrell v. Shulkin, 28 Vet.App. 382 (2017), the Court of Appeals for Veteran Claims (CAVC) stated that the magnitude of a veteran’s job responsibilities, the degree of accommodation necessary for success at a job, and full-time versus part-time work may be factors relevant to determining if employment is in a protected environment.
Additionally, in Ortiz-Valles v. McDonald, 28 Vet.App.65 (2017) the CAVC found that a veteran can show marginal employment by showing income less than poverty level OR by the totality of the circumstances showing that the veteran is capable of only marginal employment if the cause is service-connected. In other words, the VA cannot discount a claim for TDIU because the veteran failed to claim income less than the poverty threshold.
The VA must also consider educational and occupational histories in determining whether the veteran is capable of substantially gainful employment. Cathell v. Brown, 8 Vet.App. 539 (1996) For example, the VA cannot make a finding that the veteran is capable of sedentary work and therefore not eligible for TDIU when the veteran has only ever worked and was trained as a mechanic.
TDIU may be achieved by two methods.
First, TDIU may be awarded through the schedular ratings awarded to the veteran.
If the veteran has:
- One disability rated at a minimum of 60 percent, or
- Multiple disability ratings that combine to at least a 70 percent overall rating with at least one of the multiple ratings at 40 percent.
Second, TDIU may be awarded through an “extra-schedular rating.” When the regular disability schedule is insufficient, but the veteran has exceptional or unusual disability circumstances, the VA may award TDIU. The VA should consider factors such as “marked interference with employment or frequent periods of hospitalization. 38 CFR 3.321(b)(1)
In applying factors toward a TDIU claim the VA must consider the “collective impact of multiple service-connected disabilities.” Cantrell v. Shulkin.
In both methods of considering and awarding TDIU, the claimed disability must be service-connected prior to the award. To learn more about TDUI, contact us or view our service page on TDUI.