Understanding TDIU Pleading And Proof
This article explores some TDIU Pleading And Proof nuts and bolts. In many cases, the VA percentage rating system is an excellent way to determine the extent of disability and the appropriate amount of benefits. But in many instances, the rigid rating system does not capture the full extent of the Veteran’s disability.
That’s where Total Disability due to Individual Unemployability (TDIU) claims often come into play. To be eligible for TDIU benefits, a Veteran must have:
- a single service-connected condition with a disability rating of 60% or higher, or
- more than one service-connected disability with a combined rating of 70%, and at least one of those disabilities is at least a 40% rating, and
- a showing that he or she is unemployable.
Once granted, the VA will pay TDIU benefits as though the disability rating is 100%. These disability benefits could result in approximately $3,000 per month. These benefits are potentially retroactive to the date the Veteran became unemployable, which could be several years or decades earlier.
Except for specific instances involving the Court of Appeals for Veterans Claims, the VA disability system is not a federal judicial system. The VA will, therefore, relax many pleading rules in comparison to a more formal adversarial setting. Within the VA disability system, a pleading requires that a Veteran set forth the minimum allegations needed to establish a claim. According to Roberson v. Principi (2001), the TDIU minimums are:
- Medical Disability: The disability could be physical, emotional, or any other impediment that significantly affects a Veteran’s daily activities. It must also be a service-connected disability.
- Claim for Highest Possible Rating: The Veteran need not use any “magic words”. Any request for a high or higher rating suffices. There is a presumption that any such claim meets this standard because a maximum disability rating is most often the desired outcome.
- Unemployability Evidence: In a few cases, a mere assertion of unemployability might be enough. But in most cases, the VA will want to see more evidence, as outlined below.
Before we discuss methods of proof, let’s examine the important difference between “unemployed” and “unemployable”.
The VA will not consider a veteran “unemployable” for TDIU purposes any unemployed Veteran who is capable of work. Simply establishing that a Veteran is not working is not enough. The VA will require a showing that a veteran is unable to maintain substantially gainful employment.
Alternatively, the VA may still consider a veteran with a job that is not considered substantially gainful, “unemployable”. For purposes of TDIU, some jobs will be considered “unsubstantial” and will not prevent eligibility for TDIU benefits.
A school crossing guard is a good example. This job is meaningful and emotionally fulfilling, but it usually does not have enough hours or sufficient pay to lift the Veteran above the poverty line. As such, the job will not be considered as “substantially gainful employment” for a TDIU evaluation.
Sheltered Or Protected
Additionally, if the Veteran’s job is in a “sheltered” or “protected” work environment, he or she may still be eligible for TDIU benefits – even if the salary is above the poverty threshold. A “sheltered” or “protected” work environment is one in which the employer makes significant allowances for the Veteran.
This is a fact-specific determination, but the situations typically involve instances in which employer excuses the Veteran from critical aspects of the job which other employees would be required to fulfill. A common example is a Veteran who works in a family-owned business, where the supervisor looks the other way when the Veteran must show up late, leave early, or miss entire days due to their disabilities.
Count on Experienced Attorneys
Regardless of your percentage rating, total disability benefits might be available. For a free consultation with an experienced Veterans disability lawyer in San Diego, contact the Law Offices of Peter S. Cameron, APC at 800-861-7262 or fill out the contact box to your right. We are here to represent Veterans nationwide.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.