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TDIU And Disability

TDIU And Disability

 

Is TDIU the Same as 100% Disabled?

 

Veterans with more than one service-connected disability or with a highly rated disability, which affect their ability to work, may apply for Total Disability based on Individual Unemployability, or TDIU. TDIU is a rated condition separate from the normal rating scheme, which looks at a disabled veteran’s ability to obtain and maintain gainful employment. There are several factors to be considered when a veteran applies for TDIU, but here we will discuss the “total” disability aspect.

 

There is more than one way to reach “totally” disabled status at the VA. A veteran could reach 100% disability based on one disability or a combination of disabling conditions. This takes place through the normal rating scheme, and focuses on the loss of use of the parts of the body the conditions affect.

 

TDIU takes into account the full picture of the disabled veteran, and how the disabling conditions affect him or her as an individual. For example, a back disability may not be particularly debilitating for someone who engages in moderate activity throughout the day. However, that same condition would have a much bigger impact on a veteran who was trained to be a sports referee engaging in extreme activity, or a veteran trained to be a computer programmer who is required to sit for long periods. In either example, a back injury could seriously impact the veteran’s ability to do his or her job.

 

Total Disability

So, to answer the title question, TDIU is another avenue to reach 100% disability.

 

If you have one service-related disability with a 60% rating, or a combination of two or more disabilities equaling 70% rating or more, you can apply for TDIU benefits.

 

If you do not meet the schedular requirements described here, you can apply to the VA for extra-schedular TDIU. This essentially means the VA does not rate your disability above 60% because, to the average veteran, the injury or condition is not 60% disabling. Remember, however, TDIU focuses on the individual. So an injury that impacts one person in a small way can impact another veteran’s ability to do their job in a much more significant way. The VA must make an initial finding that a veteran can apply for extra-schedular TDIU before it goes through the normal claims process.

 

There is another important aspect of TDIU that sets it apart from the normal rating scheme. The VA considers it a claim and they must adjudicate it. The VA intends the claim process to be veteran-friendly, meaning it is the opposite of a typical adversarial legal system. While this is not always the case in practice. TDIU case law provides that the VA must consider TDIU if it is raised in the case file. Even if the veteran has not properly applied for it.

 

Individual Unemployability

We have discussed the meaning of “unemployability” in TDIU in the past, but it is important to note that TDIU focuses on the individual and his or her training when considering whether total disability is appropriate. To continue with the example above. What if a sports referee or athlete sustains a leg injury? Would that leg injury impact their ability to work? Especially, in a more significant way than a leg injury would impact a computer programmer’s work. Of course, a referee or athlete likely could be trained to do other types of work. But that is not true in every case. Some low-skilled workers only have manual labor as an option for work. And physical injury can all but destroy their sources of income.

 

It is also important to note the applicant seeking TDIU must be unemployable in an unsheltered environment. A sheltered environment is an environment in which a veteran could get special treatment they would not receive elsewhere. This could be a veteran-owned business, a family-owned business, or something similar. There is a reasoning behind this requirement. A veteran should not be denied the correct benefits just because he or she “got lucky”. Which could happen with highly accommodating employment that would not be available elsewhere.

 

On a related note, there is a difference between being “employed” and “employable”. Many veterans continue to work even when it is not healthy for them to do so. The VA may still consider them unemployable with an effective date during their employment. The VA may also consider them underemployed, working for wages below the poverty line. Or in another situation that does not equate to gainful employment.

 

A Clear Case For TDIU

 

To wade through all the considerations and make a clear case for TDIU, partner with an experienced VA disability attorney. He or she may hire a vocational expert to review your case, including medical history and other evidence. They also look at the status of the current job market. And offer an opinion about your employability in a practical sense.

 

For a free consultation with an experienced attorney, contact Cameron Firm, P.C., at 800-861-7262 or fill out the contact box on our website. We are here to represent Veterans nationwide.

 

This article is for educational and marketing purposes only. It does not create an attorney-client relationship.

 

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