Veterans always have questions about VA’s disability compensation benefit known as UI. It is also known as TDIU (Total Disability – Individual Incapacity for Employment) and sometimes as TD (Total Disability).
What is TDIU?
Most Veterans mix up their terminology when referring to this benefit. However, all Veterans have the same understanding of what this benefit is. When your service-connected compensation does not adequately compensate you for your military service injuries, you can request that the VA give you a 100% rating.
There are 2 ways to do this. Below I explain the BASIC eligibility criteria for both forms of TDIU: Scheduled and Extra Scheduled.
1) Scheduled TDIU
When a veteran is looking for a total disability rating, or IU (Individual Unemployability), the veteran is most commonly referring to scheduled TDIU.
It is available when a Veteran meets one or both of the following 2 eligibility criteria:
a) ONE service-connected disability rated 60% or more; gold,
b) 2 or more service-related conditions, one of which is rated 40% and the combined total percentage, using VA Math, is 70% or higher
When one or both of these criteria are met, the VA Regional Office is supposed to consider scheduled TDIU.
However, they often don’t (this can lead to an earlier effective date for some veterans who discover the error later in their appeal process).
Additionally, the VA often requires a Veteran to file a VA Form 21-8940 before the condition is even considered.
This is not legal: they are required to consider the scheduled TDIU claim with or without a VA Form 21-8940.
However, veterans must ask themselves if this is a battle worth fighting. If a Veteran believes that he or she is unable to work due to a service-connected medical condition, or believes that he or she will eventually prove unable to work, VA Form 21-8940 should be filed as soon as possible, at any part of the appeal process in the to be found
The VA regional office will almost certainly miscalculate the veterans effective date when there is a scheduled TDIU claim, so be sure to consult a VA accredited veterans benefits attorney any time you get a qualifying decision granting you TDIU : The attorney can review that decision and your C-File to determine if the Effective Date was correctly calculated.
2) TDIU Extra-Program
Again, this is very general information. I could, and probably will one day, write a book on Extra Scheduler TDIU. It is not a legal concept that is easily understood or applied by BVA veterans, VSOs, attorneys, advocates, and judges.
Because there are so many myths about what it takes to get a rating decision granting an extra-scheduled TDIU, I’m going to provide a very BASIC overview of this type of claim.
The VA says its policy is to classify veterans as 100% disabled when they can’t get a job because of a medical condition, disability or illness that makes them unemployed. In short, if a Veteran is unable to work due to the consequences of her military injury (combat or non-combat), then the VA may determine that she is unable to work.
This is true regardless of the percentage of medical conditions, illnesses or disabilities connected to your service. If a Veteran has a qualifying 10% or 30% (or any%) disability, but is unable to work due to that disability, she may be eligible for “Extra-Schedular” TDIU.
In order to obtain a VA rating decision granting extra-scheduled TDIU, the Veteran will need to show that his or her service-connected rating does not adequately compensate him or her for the loss of what is called “Earning Capacity.”
In short, the Veteran will have to demonstrate that his or her medical condition is so exceptional or unusual that it makes application of the VA Rating Programs inappropriate. VA Rater will require you to provide evidence of unique circumstances that show your medical condition, disability, or illness renders you unemployed.
Why is such a unique display required? Because the law presumes that the rate schedule adequately compensates for the loss of work capacity.
So when a Veteran has a 30% rating for Condition X and claims they are unable to work because of that condition, then the Veteran will have to show why their situation is so unique that their 30% rating is inadequate.
Here are 5 factors the VA should (and in some cases, shouldn’t) consider in an extra-scheduled TDIU claim:
Factor #1: Proof of receipt from Social Security Disability for the same condition that the VA determined did not merit a 100% rating.
Factor #2: No service-related conditions. Most Veterans are unaware that the VA cannot consider nonservice-connected disabilities when trying to determine whether or not a Veteran is entitled to EXTRA SCHEDULED TDIU.
Factor #3: Education and Employment History. The VA often messes this up: They think that because you have more education, you can’t get extra-scheduled TDIU, particularly when the Veteran’s education or experience is in a sedentary or non-physical line of work.
For example, suppose a veteran is an accountant. She is employed as an accountant on Monday, even though her service-related conditions affected her daily work activities.
If the Veteran is suddenly unable to work on Tuesday, the VA is often tempted to conclude that the situation is temporary or, because they were recently employed and highly educated, they can find employment elsewhere.
VA logic, while not “wrong” in theory, is wrong in its application. The focus of the issue of extra-scheduled TDIU entitlement is the totality of the Veteran’s current circumstances, not speculation about what the future MIGHT hold for a highly educated Veteran or a Veteran with a recent and long employment history.
Factor #4: When a Veteran’s frequent hospitalizations (for a service-connected condition(s)) affect his or her ability to obtain work, the VA Regional Office must consider those hospitalizations in an extra-scheduled TDIU claim.
Factor #5 – Although it often does just this, the VA may not consider age in the evaluation of extra-scheduled TDIU.
As you can see, proving entitlement to extraprogrammed TDIU is a difficult road.
Most veterans will need an expert opinion from a vocational or occupational expert or competent treating physician. The BVA often rules that a Veteran cannot offer an opinion, as a layperson, that she is unable to work due to a service-connected condition.
What makes an extra-scheduled TDIU claim even more difficult is that the VA Regional Office and the BVA do NOT have the authority to award extra-scheduled TDIU. Only the Director of the VA Compensation and Pension Service can make a final decision on this claim. This is one of the reasons why extra-programmed UI claims take a long time to decide.
Bottom line.
Consider claiming BOTH forms of TDIU (or UI, as it is often called) when you believe your service-connected medical conditions, illnesses, or disabilities make you unemployed.
