Unemployability/ TDIU

All Veterans are Entitled to TDIU -What is VA Unemployability?

Total Disability based on Individual Unemployability (TDIU) is a VA disability benefit that compensates veterans at the 100% disability rate, even if their combined schedular rating is less than 100%. Veterans who cannot secure or maintain substantially gainful employment due to service-connected disabilities are titled to this maximum schedular rate. VA divides TDIU claims into two types: schedular (the easy on) and extraschedular (the slightly harder one).

What Makes Veterans Eligible for TDIU?

Eligibility for TDIU requires an other-than-dishonorable discharge and that the veteran is unable to maintain substantial gainful employment due to service-connected physical or mental impairments. This benefit is not limited to specific types of disabilities; any service-connected impairment that significantly hinders employability qualifies a veteran for TDIU.

How Do Veterans Apply for TDIU?

VA requires veterans to complete VA Form 21-8940, which requests detailed, information about:

The nature of service-connected conditions preventing gainful employment.
Any hospitalizations or medical care in the past 12 months.
The date when the veteran became too disabled to work.
Employment history for the last five years of work (not the immediate past five years).
Education and vocational training received before and after becoming too disabled to work.

Schedular TDIU Requirements (yes, the easy one)

One service-connected disability rated at least 60% disabling, OR

Multiple service-connected disabilities with one rated at least 40% and a combined rating of 70% or more. Most veterans can probably navigate filing this easy one on their own or with a local VSO free of charge. However, if you would rather jump on board with our firm we can also represent you.

Extraschedular TDIU (just a little harder but absolutely winnable)

Extraschedular TDIU is awarded under 38 CFR § 4.16(b) (the easy one is (a)) when a veteran's disability presents an exceptional or unusual disability picture that the standard rating schedule cannot accurately reflect. This may include marked interference with employment or frequent hospitalizations, suggesting the need for a higher rating than what was awarded per the Diagnostic Code.

Extraschedular TDIU Why is it the Hard One?

Applying for extraschedular TDIU requires compelling the Regional Office (RO) to forward the claim to the Director of Compensation for an advisory opinion. This step is what makes it hard because the local VSR’s (rating specialists) refuse to do

Veterans Service Organizations (VSOs) and attorneys often prefer schedular TDIU cases over extraschedular ones due to this complexity. The key lies in convivncing the RO to send the case for an advisory opinion. We do this by requesting pre-determination hearings and HLR conferences so we can get an actual human being on the phone. Once this hurdle is overcome, the claim proceeds on the same procedural grounds as a schedular TDIU case.

Extraschedular TDIU Challenges and Approach by Lowry Veterans Law Ltd.

Attorneys at Lowry Veterans Law Ltd. specialize in navigating these complexities. Unlike many Veterans Service Organizations (VSOs) and attorneys who may shy away from extraschedular cases due to their demanding nature, we embrace these challenges. Our expertise lies in effectively advocating for the veteran's claim at the RO level and ensuring that the case is escalated appropriately.

We focus on meticulously preparing and documenting each claim to highlight the significant impact of disabilities on the veteran’s ability to engage in substantially gainful employment.