Veterans Must File A Separate Claim For Va Tdiu Benefits: Myth
As a general rule, VA is required to assume that a veteran is seeking the highest possible rating for their service-connected condition, to include entitlement to individual unemployability. This means if a veteran is seeking an increased rating for a service-connected condition, and there is evidence suggesting that they cannot work due to that condition, VA is supposed to consider entitlement to TDIU as a reasonably raised issue. That being said, it is better to assist VA in this process by submitting VA Form 21-8940, the formal application for TDIU. This form provides a lot of information that might not be included in the veterans claims file.
Are Va Individual Unemployability Benefits Permanent
Individual Unemployability is not automatically permanent, but can be in certain circumstances. If your IU benefits are permanent, VA will indicate that in your Rating Decision in one of three ways: a box will be checked to indicate that your 100 percent disability is permanent language such as eligibility to Dependents Chapter 35 DEA are established, as these benefits are reserved for dependents of veterans who are permanently and totally disabled if your Rating Decision says no future exams are scheduled, your rating is permanent.
What Is The Difference Between Unemployability And A 100% Disability Rating
The monthly compensation amount for unemployability is equal to that of a 100% disability rating. However, the qualifying criteria for unemployability is different than the requirements for a 100% disability rating.
An unemployability rating does not solely rely on the rating of a specific condition to grant benefits, it takes into account a veterans ability to work. Unemployability allows a veteran who is unable to work, to receive compensation at the 100% level even though their service-connected condition does not meet the 100% rating criteria. On the other hand, with a 100% disability rating, there are not the same restrictions on work activity as with unemployability. Therefore, if a veteran is rated 100% for their service-connected disability, and they are able to work, then they may do so.
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What Employment Qualifies For Tdiu
Several types of employment may allow a Veteran to still qualify for partial or complete TDIU benefits. These employment types include:
- means that the Veteran works but earns a salary lower than the poverty level for their state or location. Because the Veteran doesnt receive a salary comparable to other working professions in their industry, it does not qualify as substantially gainful employment.
- Part-time employment without the opportunity for full-time employment. If a Veteran can only work eight hours per week at a restaurant, they almost always earn below the poverty threshold. This also qualifies as marginal employment, even if the per-hour salary is theoretically enough to earn a living wage .
- Employment in a protected work environment. The VA often considers Veterans still eligible for TDIU benefits if they are employed in a protected work environment, which often makes accommodations for conditions or injuries. However, the Veteran must prove that they work in a protected work environment if they hope to receive benefits despite their employment status. Evidence can include employer statements, W-2s, pay stubs, and so on.
As you can see, it is possible to work and still receive TDIU benefits as a Veteran with one or more service-connected conditions. However, youll need to take a few extra steps to prove that your employment does not disqualify you from TDIU benefits if you want to take advantage of this opportunity.
Tdiu Permanent And Total
If your service-connected disabilities have progressed to the state that youre no longer able to work, you may be wondering how you will pay your bills. Fortunately, the VA offers special benefits to unemployable disabled veterans, including TDIU permanent and total benefits.
As veterans ourselves, we know how overwhelming it can be to deal with VA. As VA accredited lawyers, were ready to help our fellow servicemembers receive the benefits theyve earned. Contact us today to learn more.
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Hiring A Total Disability Individual Unemployability Benefits Lawyer
We highly suggest you contact a veterans benefits lawyer to assist you with obtaining your TDIU VA compensation benefits. The Veterans Administration is a maze of thousands of federal regulations and deadlines that could seriously affect your chances of obtaining TDIU benefits. When you hire Woods & Woods, our team of TDIU VA disability lawyers, doctors, case managers, psychologists, and vocational experts go to work for you. We never charge a penny unless you win your TDIU benefits. If you need TDIU benefits help, our VA disability compensation lawyers are here to help.
Am I Still Eligible For Total Disability Individual Unemployability If Im Currently Working
If you are currently working but dont earn more than the federal poverty threshold, then the VA may consider that to be marginal employment.
If you are currently working in a protected work environment, for example, a family business, or at a job that allows specific accommodations, and your earnings are above the federal poverty threshold, you may still be entitled to TDIU benefits, because the VA does not consider a protected work environment to be substantially gainful employment.
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Myth #: Only Veterans Who Meet The Schedular Criteria Qualify For Tdiu
Generally, Veterans receiving TDIU have one service-connected disability with a rating of 60% or higher or two or more service-connected disabilities with a combined disability rating of 70% or higher and one disability rated 40% or higher. In some cases, however, Veterans can qualify for extra-schedular TDIU.
Extra-schedular TDIU is for Veterans with disabilities that prevent them from working even though they dont meet the standard percentage thresholds. This could be a condition requiring frequent hospitalizations but is most often associated with back pain or other issues that prevent Veterans with no higher education or job training from working in physically demanding jobs.
Can You Get Over A 100% Va Disability Rating
No, by law you cannot have more than a 100% rating but also because the VA states a person cant be more than 100% able-bodied.
To Summarize:
- Veterans with schedule of ratings disability percentages may legally have substantial gainful employment even if they are rated at 100% disabled UNLESS they receive Total Disability/Individual Unemployability compensation.
- Receiving the Individual Unemployability benefit which designates you as 100% unemployable means you cannot work a job deemed substantial gainful employment that elevates your income above the official Census Bureaus definition of the poverty line.
- In reference to Individual Unemployability, it does not matter how much or how little you work-the measure of gainful employment here is whether or not your earnings rise above the poverty threshold as determined by the government.
- If youre still not certain of your individual circumstances it may be best to consult with a lawyer.
Joe Wallace is a 13-year veteran of the United States Air Force and a former reporter for Air Force Television News
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Eligibility And Va Unemployability Benefits
Veterans who wish to receive Total Disability Individual Unemployability benefits must be eligible by the Veterans Administrations guidelines on VA Unemployability requirements and income limits. First, veterans must have a service-connected mental or physical impairment. This disability must have been caused or aggravated by your time in the service. Second, veterans wishing to obtain TDIU benefits must have been considered active-duty during their military career. Third, you must not have a dishonorable discharge. This is an overgeneralization of eligibility and we encourage you to contact us for eligibility questions.
TDIU benefits are for veterans who can no longer work due to service-connected disabilities. If you are not yet service-connected, Woods & Woods can help. Below are the general requirements for obtaining TDIU benefits. If you are not sure you are eligible for VA Unemployability, give our Total Disability Individual Unemployability benefits lawyers a call.
- You must be a veteran
- You must have service-connected disabilities
- You must not have been discharged dishonorably
- You must have at least one service-connected disability rated at least at 60%, OR two or more service-connected disabilities at least one disability ratable at 40 percent or more with a combined rating of 70 percent or more.
- You must be unable to maintain substantially gainful employment as a result of service-connected disabilities .
Legal Requirements For Qualifying As Unable To Work
What counts as unable to work in the eyes of the law and the VA?
According to the VA, substantially gainful employment is employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.
In simpler words, if a disabled Veteran can make an income that is similar to non-disabled people employed in the same field, he or she is considered able to work.
To count as substantially gainful employment rather than marginal employment, the income would have to be higher than the poverty threshold per the Census Bureau. In 2016, this was $12,486 per year for an individual under the age of 65 and $11,511 for individuals aged 65 or older.
Exceptions to these rules are disabled Veterans who are self-employed, work in a family business, or find employment in a sheltered environment. In those cases, the VA may consider you for Total Disability based on Individual Unemployability benefits even if you earn an income higher than the poverty threshold.
If you earn money through the Veterans Health Administrations Compensated Work Therapy Program , this will not count as income when the VA considers your eligibility for TDIU.
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What Are Total Disability Individual Unemployability Benefits
Total Disability Individual Unemployability benefits are for veterans that cannot keep or obtain gainful employment. You must not be able to work because of mental and physical impairments. Those disabilities must be related to your time in the service and be considered service-connected to receive benefits.
Secondary service-connected benefits do count towards your Total Disability Individual Unemployability benefits claim. For example, if a veteran was exposed to Agent Orange and developed diabetes, all conditions from diabetes are also considered service-connected. TDIU benefits pay the same as a 100% VA Disability rating. Veterans who are eligible for TDIU benefits might receive more than $3,332.06 a month. There is extra compensation for veterans who have dependent children and parents.
Four things you should know about Total Disability Individual Unemployability benefits:
What Information Is Required
- All medical records pertaining to the service-connected disabilities that have made you unable to work
- Hospitalization and outpatient care records in the past year
- The exact date or period when you became too disabled to work
- Information on your work history during the last five years you were able to work
- Any education and/or vocational training you have had.
You can apply through the VA website, in person at your local VA office, or with a legal representative.
To make sure your IU application is reviewed promptly and you have the best chance of success, you should provide clear, detailed, and consistent documentation and information. A VA representative is responsible for reviewing your case and approving individual unemployability, so the more clear and exact you can be, the easier it is for them to approve your claim.
The VA may not process your claim quickly. It can take several months to review your individual unemployability benefits application. However, if your IU claim is approved, you will qualify for retroactive benefits to the date you filed.
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Can I Qualify For Individual Unemployability While Working
Berry LawAppeals
By its very name, it should seem like veterans cannot obtain benefits for Individual Unemployability while still employed. But the Court of Appeals for Veterans Claims has countered that assumption, saying working veterans can qualify for Individual Unemployability under certain circumstances. While this may seem counterintuitive, Individual Unemployability is not a benefit for the unemployed. It is a benefit for the unemployable. This subtle difference carves out situations where an employed veteran still qualifies.
There are two established circumstances in which an employed veteran might still be entitled to unemployability benefits. Either the veterans earnings do not meet the poverty threshold or the veterans employer makes special accommodations without which the veteran would be unable to work. Assuming the veteran otherwise qualifies for Individual Unemployability, these types of employment would not bar him or her from receiving a total rating for unemployability.
Applicants By Age Group
Chart 8 shows the number of DI allowances and denials and the associated allowance rates by age group and VA rating. Veterans aged 50 to full retirement age 17 filed more than two-thirdsof the DI applications filed by all age groups.
In each age group, the allowance rate for cases with a 100% rating was higher than the allowance rate for IU cases. Additionally, allowance rates for those aged 50FRA were considerably higher than the rates for those in the two younger age groups. The age-group difference is likely a function of the role that age plays in DI decisions involving medical-vocational considerations . Within each VA rating category, the two younger age groups had similar allowance rates . However, within each age group, the difference in allowance rates between the IU and 100% ratings is substantially greater for the younger groups: 12.1 percentage points for ages 1834, 9.5 percentage points for ages 3549, and 5.8 percentage points for ages 50FRA.
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How Do I Get These Benefits
Youll need to file a claim for disability compensation. When you file, youll have to provide evidence showing that your disability prevents you from holding down a steady job. Well 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.
When you file a disability claim, youll also need to fill out these additional forms for Individual Unemployability benefits:
- A Veterans Application for Increased Compensation Based on Unemployability
Frequently Asked Questions: 90 Percent Va Disability Ratings
What does a 90 percent VA Disability rating pay monthly?
The Veterans Administration will pay $1,887.18 monthly to veterans who are eligible according to the 2021 ratings tables. There is also extra monthly compensation available to veterans who have dependent children and parents. If you are approved at a 90% rating, you may also be eligible to receive back pay.
Is it hard to get a 90 percent VA Disability rating?
Some veterans have a clear-cut case where there is no question they deserve a 90% rating. For other veterans, you are going to have to jump through hoops to obtain a 90% rating from the VA. There is no quota of 90% ratings the VA must handout. Each VA claim is decided on a case-by-case basis. Your case will be decided solely upon the merits of your claim.
What are my chances of getting a 90 percent VA Disability rating?
If you provide relevant medical evidence, meet numerous deadlines, do excellent legal research, and correctly fill out all the paperwork, your chances will increase. Many veterans lose their claim because they did not provide evidence to prove they deserve a 90% rating.
What if I think I deserve a 90 percent VA Disability rating and was denied?
If you were denied a 90% rating within the last year, you may be able to appeal the VAs bad decision. If you were denied over a year ago, you can re-apply for your 90% rating. You can apply for VA Disability benefits as many times as you like there is no limit.
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What Is The Exception About Marginal Employment
So heres one way you can do that with limited earnings. The rule says that marginal employment shall not be considered substantially gainful employment. The VA M21-1MR manual defines substantially gainful employment as:
Employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.
That definition sounds like a bunch of legalese. So, what does it mean in laymans terms. Basically, it means typical work used to earn a living where the veteran lives.
With regard to marginal employment, 38 CFR 4.16 gives you a couple of examples of what qualifies. One of those examples is marginal employment based on limited earnings.
The regulation says that marginal employment shall be deemed to exist when a veterans earned annual income does not exceed the amount established by the Department of Commerce and the Bureau of Census within the Commerce Department. Basically, you can still earn money and draw your full TDIU benefits if you are below the poverty threshold.
How Much Do Tdiu Benefits Pay Monthly
TDIU benefits are comparable to 100% VA Disability rating. Veterans that qualify for TDIU should receive a minimum of $3,146/month.
So Me Using GI Bill Benefits Wont Take Away From This Amount?
If you qualify for TDIU and are using your GI Bill benefits for either yourself or a family member you should not lose any of the TDIU income you currently receive. The$3,146/month figure listed above is a minimum amount. You may be entitled to more depending on your TDIU rating.
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The Difference Between 100% For Unemployability And 100% Disability Rating
In general, neither the 100% disability rating nor a total disability rating based on individual unemployability , or more commonly known as unemployability, is better than the other. The monthly compensation amount for unemployability is equivalent to a 100% disability rating. However, depending on a veterans circumstances, one option might be more beneficial to pursue.
