Veterans who are unable to follow a substantially gainful occupation due to their service connected conditions are eligible to receive a total disability based on individual unemployability (TDIU) rating. The inability to secure or follow a substantially gainful occupation (SGO), as defined under 38 CFR 4.16(b), depends on economic and non-economic components. The VA bases the economic component of a TDIU determination on a decision about the wages a veteran is capable of earning. The decision maker evaluating the veteran’s claim must take into account the veteran’s earning capacity in employment or potential employment scenarios, including whether or not the employment would be:
- Substantially gainful – competitive (not protected) employment with earnings exceeding the amount established by the U.S. Department of Commerce as the poverty threshold for one person (as of 2020, this amount is $13,465 for those under 65, and $12,413 for those over 65).
- Marginal – employment where (a) the veteran’s income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person or (b) on a facts-found basis, the veteran’s income exceeds the poverty threshold, but the employment is in a protected environment, such as a family business or sheltered workshop.
Veterans who are currently working in a marginal employment setting are eligible to apply for TDIU if they are unable to work in a SGO. If the VA finds that a veteran working in marginal employment is still capable of working a SGO, it will likely deny his or her claim for TDIU. Even if the veteran is not working at the time he or she applies for TDIU, the rating decision will still need to address the veteran’s capacity for marginal or substantial employment. Any veteran, working or not working, that the VA determines is capable of only marginal employment is considered incapable of securing or following an SGO and is therefore entitled to TDIU. For more information on the U.S. Department of Commerce’s poverty thresholds, visit here.
Help With Your TDIU Claim
If you or someone you know is a veteran seeking assistance with a TDIU claim, please contact our office today to receive a free claim evaluation. Our experienced veterans disability lawyers are ready to help you get the compensation you deserve for your service-connected condition(s).