If you are a veteran and are unable to work because of your service-connected disabilities, you are eligible to receive 100 percent compensation from the Department of Veterans Affairs (VA) on a permanent and total (P&T) basis via a total disability rating based on individual unemployability (TDIU or IU). Whether you currently have a cumulative disability rating of 90 percent or even a cumulative disability rating of just 10 percent based on a single impairment (e.g., tinnitus), you are entitled to a TDIU rating so long as you are unable to work as a result of symptoms or limitations caused by a service-connected impairment. Contrary to what many veterans hear, a TDIU rating (1) provides the exact same monetary compensation as a combined 100 percent schedular disability rating and (2) also makes a veteran eligible for P&T status with the VA. For this reason, and because it can be difficult for even severely impaired veterans to obtain service connection for enough disability ratings at evaluations that are high enough to amount to a combined 100 percent schedular disability rating based on the VA’s math, individual unemployability is often a more effective means of obtaining 100 percent compensation, not to mention P&T status via a grant of Dependents’ Educational Assistance (DEA).
How The Veterans Law Office Can Help You Win Your TDIU Claim
Our veterans disability attorneys assist veterans who are no longer able to work, regardless of whether a veteran has already applied for and been denied entitlement to a TDIU rating, has yet to file an initial application, or has already filed an initial application but has yet to receive a rating decision from the VA regarding his or her entitlement to a TDIU rating. Regardless of your circumstances, if you are a veteran and are unable to work as a result of the effects of your service-connected disabilities, our office can help.
Our Office’s Approach To Representing Veterans Whose TDIU Claims Have Already Been Denied
If the VA has already denied your claim for unemployability, please contact our office today for a free case evaluation in which one of our attorneys will assess the effects of your service-connected disabilities on your occupational and social functioning and help you understand whether there may be an effective strategy to win your claim for a TDIU rating.
After an initial consultation, our office will obtain and review your (1) service medical and personnel records, (2) post-service medical treatment and C&P examination records, and (3) other records pertaining to your employment history and disability status with the Social Security Administration (SSA), the Railroad Retirement Board (RRB), the Federal Employees Retirement System (FERS), or any other disability determination system. Then, our office will determine whether your claim for a TDIU rating was denied on an entirely erroneous basis, meaning that the uncontroverted medical and other evidence already in your claims file at the time of the VA’s decision demonstrated your entitlement to a TDIU rating and the VA still denied your claim. If this is the case, our office will likely file a Request for Higher Level Review under the VA’s Appeals Modernization Act (AMA) system, which means that your case will be decided by a Decision Review Officer (DRO) at one of the VA’s two DRO Centers (DROC) in Seattle, Washington, and St. Petersburg, Florida. In representing you in your Request for Higher Level Review, our attorneys will draft a detailed supplemental statement demonstrating how the existent medical and other evidence already in your claims file at the time of the VA’s unfavorable rating decision shows you are unable to work due to your service-connected disabilities. We will also request an informal conference with the DRO assigned to your case so that one of our attorneys can make an oral argument in support of your claim.
However, if our office determines that the evidence of record already in your claims file at the time of the VA’s decision denying your claim for a TDIU rating does not clearly and definitively demonstrate your entitlement to a TDIU rating, we will then develop your case by (1) referring you for an independent medical or psychological evaluation, (2) obtaining a medical opinion from one or more of your treating physicians, psychologists, or counselors, (3) seeking a vocational opinion from a vocational expert based on a limitation the VA has already conceded your service-connected disabilities cause you to have, and/or (4) developing other evidence, such as sworn declarations from you or a loved one, detailing how your service-connected impairments limit your ability to function on a daily basis. Once our office has obtained such new and relevant evidence, we will then file such evidence along with a supplemental claim under the VA’s AMA system.
Our Lawyers Also Help Veterans File Claims For TDIU Ratings On A Pro Bono Basis
While most veterans disability law firms only represent veterans after they have filed for and been denied a TDIU rating by the VA because the VA does not allow an attorney to charge a fee for representing veterans on initial claims, The Veterans Law Office maintains a significant pro bono practice in which its lawyers focus on helping veterans file (1) initial claims for individual unemployability and (2) service connection for post-traumatic stress disorder (PTSD) and other mental impairments, not to mention other initial claims that may result in significant compensation that can change veterans’ lives. Please contact our office today to learn whether there may be an effective strategy for our office to win your claim for a TDIU rating.
What Is A TDIU Rating And What Are The Requirements
As described in the above, in simplest terms, a TDIU rating pays 100 percent compensation, can be awarded on a P&T basis, and the only true requirement is that a veteran’s service-connected impairment(s) preclude his or her ability to work. While it truly is this simple from a 30,000-foot perspective, the VA’s regulations set forth a sort of roadmap by which to adjudicate claims for individual unemployability. When evaluating an unemployability claim, the VA will first determine whether the veteran’s service-connected impairments meet the schedular requirements of 38 CFR 4.16(a), which means that the veteran’s claim can be adjudicated by any decision-maker at any of VA’s fifty-six Regional Offices (RO). If the veteran’s service-connected impairments do not meet the schedular requirements of 38 CFR 4.16(a), then the VA should adjudicate the claim under 38 CFR 4.16(b), which requires that the veteran’s IU claim be referred to the Director, Compensation Service, for extra-schedular consideration.
What Are The Schedular Requirements Of 38 CFR 4.16(a) And How Will The VA Adjudicate My Claim?
Let’s break down the schedular requirements of 38 CFR 4.16(a) by closely reading the text of the regulation itself:
“Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That,
- if there is only one such disability, this disability shall be ratable at 60 percent or more,
- and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.
- For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:
- (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,
- (2) disabilities resulting from common etiology or a single accident,
- (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,
- (4) multiple injuries incurred in action, or
- (5) multiple disabilities incurred as a prisoner of war.”
In short, a veteran is eligible for a TDIU rating under 38 CFR 4.16(a) if he or she has (1) one service-connected disability rated as 60 percent disabling or (2) at least one service-connected disability rated as 40 percent disabling AND a total combined disability rating of at least 70 percent. However, as directly contemplated by the regulation’s above text, there are many ways in which a veteran’s service-connected impairments could satisfy the above schedular requirements of 38 CFR 4.16(a), even if it appears at first glance that such requirements have not been met.
In this example, John is an Iraq War veteran who is unable to work and has the following service-connected disability ratings: (1) a 50 percent schedular disability rating for cervicogenic headaches, (2) a 10 percent schedular disability rating for cervical spine disorder, which he sustained from an accident in Iraq, and (3) a 10 percent schedular disability rating for radiculopathy in his right upper extremity. By the VA’s math, John has only a combined disability rating of 60 percent, so, at first glance, he does not meet the schedular requirements of 38 CFR 4.16(a) because he has neither a single disability rated as 60 percent disabling, nor a total combined disability rating of 70 percent. However, in this example, John in fact meets the schedular requirements of 38 CFR 4.16(a) because all three of his service-connected impairments have a common etiology: both John’s cervicogenic headaches and upper right extremity radiculopathy are secondary to the cervical spine disorder he developed as a result of the in-service accident he experienced in Iraq. Because all three disability ratings combined equal 60 percent, and because all three service-connected impairments have a common etiology, John has established one 60 percent disability rating, and, therefore, his service-connected impairments satisfy the requirements of 38 CFR 4.16(a). As a result, the VA is required to adjudicate John’s claim for individual unemployability under 38 CFR 4.16(a), meaning that any VA decision-maker can decide John’s claim. A referral to the Director of Compensation Service for extra-schedular consideration is not needed.
Here, Sarah is an Army veteran who suffered near fatal injuries from an in-service parachuting accident. However, after an in-service recovery and rehabilitation program, Sarah was honorably discharged, filed a claim for service connection for her orthopedic and other disabilities, and was granted service connection for the following impairments: (1) a 10 percent rating for a lumbar spine impairment, (2) a 10 percent rating for a cervical spine impairment, (3) 10 percent rating for the left knee, (4) a 10 percent for the right elbow, (5) a 10 percent for the right knee, (6) a 20 percent rating for hearing loss, and (7) a 30 percent rating for irritable bowel syndrome (IBS). Sarah is unable to work due to both the symptoms caused by her service-connected IBS and the combined effects of her orthopedic conditions on her ability to sit, stand, and walk. While Sarah has a 70 percent total combined disability rating by the VA’s math, at first glance, it appears Sarah does not have one disability rated as 40 disabling, meaning her service-connected impairments would fail to meet the schedular requirements of 38 CFR 4.16(a). However, Sarah in fact meets the schedular criteria because Sarah is service connected for five orthopedic conditions, which together combine to equal 40 percent. As expressly articulated in the above text of 38 CFR 4.16(a), Sarah’s orthopedic conditions may be combined to establish a single 40 percent disability because they are all disability affecting a single body system, the orthopedic body system. In this way, Sarah’s claim for a TDIU rating satisfies the requirements of a 38 CFR 4.16(a) and can be adjudicated by at the Regional Office level without the need for a referral for extraschedular consideration to the Director of Compensation Service.
In this hypothetical example, David is a Vietnam veteran who is disabled as a result of service-connected type II diabetes mellitus, for which the VA has assigned him a 60 percent schedular disability. In addition to his diabetes, David is service connected for chloracne via a 10 percent schedular disability rating. Because he is unable to work as a result of the fatigue and semi-annual hospitalizations caused by his diabetes, which he developed as a result of his exposure to Agent Orange during his service in Vietnam, David applied for unemployability. However, the VA denied his claim and, in its rating decision, found that David’s service-connected conditions did not satisfy the requirements of 38 CFR 4.16(a) because, even though his 60 percent schedular disability rating for diabetes constitutes a single 60 percent disability rating, he is also service connected for chloracne and, therefore, he does not have “only” one singular disability rating, meaning that his 60 percent disability rating is not sufficient to satisfy the schedular requirements of 38 CFR 4.16(a) and that instead he must establish a total combined rating of 70 percent, with 40 percent for a single disability. However, this is an entirely erroneous finding by the VA based on a misunderstanding of 38 CFR 4.16(a). It is a mistake that the VA routinely makes at the Regional Office level. It is axiomatic that the VA may not functionally impose a harsher requirement than that imposed by the regulation itself. For veterans like David, who are service connected for one condition at 10 percent and another condition at 60 percent, a nonsensical reading of the regulation would imply that such a veteran is not entitled to schedular consideration of his claim for a TDIU rating because (1) he is service connected for two conditions instead of just one, meaning he cannot establish a single, solitary disability rating of 60 percent and (2) his two disability ratings only equal a total combined disability rating of 60 percent, and not 70 percent, under the VA’s math. However, such a nonsensical reading would actually penalize veterans in this situation and would create a system in which a veteran who is already service connected for one disability at 60 percent would be disincentivized to file a claim for service connection for another condition, in case he might only be granted a 10 percent disability rating and then found ineligible for schedular consideration of his claim for a TDIU rating. For these reasons, the VA should find that any veteran with both a 60 percent schedular disability rating for one condition and a separate 10 percent schedular disability rating for another condition meets the schedular requirements of 38 CFR 4.16(a) and adjudicate his or her unemployability claim without a referral to the Director of Compensation Service.
If you are a veteran and have questions about whether your service-connected conditions meet the schedular requirements of 38 CFR 4.16(a), please do not hesitate to contact our office for a free case evaluation. One of our veterans lawyers will assess your case and provide you with detailed information on appealing or filing your claim for individual unemployability.
If I Don’t Qualify Under 38 CFR 4.16(a), Can I Still Receive TDIU Benefits Under 38 CFR 4.16(b)?
The short answer to the above question is YES, so long as your service-connected disabilities preclude your ability to work. The plain language of 38 CFR 4.16(b) says almost exactly that:
“It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.”
As the above regulation text makes clear, though, a claim for a TDIU rating that does not meet the schedular requirements of 38 CFR 4.16(a) requires a referral to the Director of Compensation Service. Functionally, this means that it will take the VA significantly more time to grant an extraschedular TDIU claim because it takes time for the Regional Office to review a claim for such a referral and then the decision by the Director of Compensation Service itself can take a significant amount of time due to a backlog of referred claims. However, a referral to the Director of Compensation Service is by no means automatic, and, in fact, persuading a decision-maker at the Regional Office level to make such a referral can often be the biggest obstacle in extraschedular TDIU claims. If a local decision-maker ultimately refuses to make such a referral, a veteran may then appeal to the Board of Veterans’ Appeals (Board) to order such a referral. The Board itself cannot decide an extraschedular claim for a TDIU rating if the claim has not already been decided by the Director of Compensation Service, so even if the Board agrees that the veteran is entitled to a TDIU rating, it cannot grant a TDIU rating and instead must remand the claim for a referral to the Director of Compensation Service. If the Director then denies the veteran’s claim for a TDIU rating, the veteran must file another appeal to the Board, and, at this point, the Board has the ability to grant the claim for a TDIU rating on an extraschedular basis. Altogether, navigating this system of appellate review can take years.
Now that the above has been explained, let’s review a few hypothetical situations in which extraschedular TDIU can and should be granted by the VA.
Jessica is an Air Force veteran who began experiencing incapacitating migraine headache attacks while on active duty and was subsequently honorably discharged in part due to her inability to carry out her duties on a regular basis due to her very frequent migraine headaches, which require her to lie down in a dark, quiet room until the pain subsides hours later. Because the VA’s C&P examining physician found in his C&P examination report both that Jessica has very frequent, prostrating and prolonged migraine headaches productive of severe economic inadaptability and that Jessica’s migraine headaches manifested to a compensable degree while she was still on active duty in the Air Force, the VA granted Jessica service connection for migraine headaches in the form of a 50 percent schedular disability rating, effective the day after her honorable discharge. Though Jessica has no other disabilities for which to apply for service connection, Jessica filed a claim for a TDIU rating because she has come to the conclusion that, unfortunately, she is unable to work due to her migraine headache attacks precluding her ability to maintain regular attendance at any job. However, the VA denied her claim for individual unemployability because it found that she does not meet the schedular requirements of 38 CFR 4.16(a) in that she does not have a single disability rating of at least 60 percent and does not have a total combined disability rating of at least 70 percent. In denying Jessica’s unemployability claim, the VA failed to refer her claim for a decision by the Director of Compensation Service. Though Jessica is in fact eligible for a TDIU rating via extraschedular consideration under 38 CFR 4.16(b), in order for the VA to refer her claim to the Director of Compensation Service and ultimately grant he reclaim for a TDIU rating, Jessica must present medical and other evidence demonstrating that her service-connected migraine headaches alone preclude her ability to work, or to use the VA’s standard, which is detailed below, follow a substantially gainful occupation (SGO). Such evidence should likely include a detailed headache log, a sworn declaration from Jessica detailing her functional limitations caused by her migraine headaches, a medical opinion from an examining or treating neurologist, and a vocational opinion from a vocational expert.
Imagine now that Jessica from the above example is only service connected for tinnitus in the form of a 10 percent schedular disability rating, the maximum schedular disability rating assigned by the VA (so she is service connected for just tinnitus instead of just migraine headaches). Even though Jessica is only service connected for tinnitus and only has a total combined disability rating of 10 percent, the VA must award her a TDIU rating if the medical, vocational, and other evidence demonstrates that the symptoms and limitations caused by her service-connected tinnitus alone precludes her ability to work.
Contact Us Regarding Your Extraschedular Claim For A TDIU Rating
If you are a veteran and are not able to work due to service-connected impairments that do not result in a single 60 percent rating or a total combined rating of 70 percent with a single disability rating of at least 40 percent, please call our office or submit a contact form on this website for a free case evaluation. One office will review your case, and one of our attorneys will provide you with detailed information on appealing or filing your claim for individual unemployability.
Can I Receive TDIU If I Am Working? The Difference Between A Substantially Gainful Occupation and Marginal Employment
While VA regulations fail to articulate expressly a definition for substantially gainful occupation (SGO), in its VA Manual M21-1MR, the VA 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.” In contrast, the VA defines marginal employment as follows: “Marginal employment exists if, by reason of age and disability, the veteran works less than one-half the usual hours or receives less than one-half the prevailing community wage for the particular occupation.”
Read again those definitions from Manual M21-1MR, which is the manual that VA employees must rely on in adjudicating claims and appeals for veterans disability compensation; under those definitions, a part-time job could constitute a substantially gainful occupation, while a full-time job could constitute only marginal employment. Because each determination regarding whether a veteran’s employment constitutes an SGO or merely marginal employment is very fact-specific, it can be very difficult for veterans to understand whether they are engaging in substantially gainful or marginal employment. Here, the below section of 38 CFR 4.16(a) is helpful:
“Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.”
The main takeaways from the above regulation texts are as follows:
- If you are working on a part-time basis and earning on an annual basis less than the poverty threshold for a single individual, your employment very likely constitutes only marginal employment and not an SGO.
- If you are working on a part-time basis and earning more than the poverty threshold for a single individual, your employment may constitute only marginal employment and not an SGO if your employer is providing you with extensive accommodations, such as removing deadlines or quotas, allowing you to leave early or start late without notice, take shifts off with little or no notice, or removing major duties of the job from your responsibility, such that your employment no longer resembles “employment that is ordinarily followed by the nondisabled to earn their livelihood.” Such marginal employment might also be reflected in reduced wages relative to those an average worker in your area would receive, e.g., an average worker in your area makes $15 per hour, but your employer only pays you $8 per hour in recognition of the fact that you receive significant accommodations such that the company cannot rely on your productivity.
- If you are working on either a full- or part-time basis and earning on an annual basis more than the poverty threshold, your employment may still constitute only marginal employment and not an SGO if your employment occurs in a protected environment such as a family business or sheltered workshop. Employment in protected environments almost always is accompanied by the veteran receiving extensive accommodations. For example, engaging in compensated work therapy (CWT) through the VA as a means of vocational rehabilitation generally constitutes only marginal employment and not an SGO. Similarly, if a veteran is employed by his or her parents or another close family member in a family business that they own and operate, the veteran’s employment may constitute only marginal employment even if he or she has earnings significantly above the federal poverty level for a single individual. This is especially likely if the veteran’s family members are paying him a salary unrelated to whether he or she actually performs any work. For instance, if a veteran is working for his parents, and they pay him a salary of $30,000 per year via regular bimonthly paychecks, which he receives every twice per month regardless of whether he showed up to work in the previous pay period, such circumstances may constitute only marginal employment and not an SGO.
As you might be able to discern from reading over the above hypothetical situations, such determinations require time to consider all of the relevant factors. Unfortunately, most VA decision-makers, especially at the initial application stage, are extremely pressed for time and do not spend the time necessary to review such factors at all, let alone thoroughly. For this reason, if you are working, even if it is accommodated, on a part-time basis, and resulting in wages below the poverty threshold, the VA may still deny your claim as doing so is the path of least resistance; it simply requires less time to deny a claim that it does to find a reason to grant it.
So while you can receive a TDIU rating even if you are working, it may be an uphill battle, which requires an appeal of the VA’s initial rating decision denying your TDIU claim based on an erroneous finding that your marginal employment constitutes an SGO.
Common Reasons The VA Erroneously Denies TDIU Claims
Though the VA denies some TDIU claims because the evidence of record at the time of the VA’s decision fails to show the veteran is unable to work due to service-connected impairments, many times the VA denies a TDIU claim that it should grant based on the evidence of record already in the veteran’s claims file. Though there are many reasons why your TDIU claim may have been wrongfully denied by the VA, below are some of the most common rationales that the VA uses in erroneously denying TDIU claims. Please keep in mind that this is not an exhaustive list by any means.
- The VA denies your claim by stating that your last job did not end as a result of your service-connected impairments and that instead you retired, were laid off, were terminated because of a workplace or department closing, or quit for other reasons.
- Ultimately, however, the VA has to grant you a TDIU rating if your service-connected disabilities preclude your ability to follow an SGO, regardless of how your last job ended. According to the VA’s own manual, prior employment or unemployment status is immaterial if you are unable to work as a result of your service-connected impairments. The rationale behind this principle can be seen in the following hypothetical: imagine for instance that a veteran suffering from severe post-traumatic stress disorder (PTSD) has been having difficulties interacting with his supervisor in his new job, which he has managed to hold for the last month. On the day before his supervisor plans to terminate his employment, the factory where he works is closed down because of external economic factors. In this hypothetical, the veteran did not lose his job because of his PTSD even though he was experiencing significant difficulties at work that had already resulted in his supervisor deciding to terminate his employment the day following the factory’s closure. In this way, one can see that whether a veteran’s last job ended as a direct result of his service-connected disabilities is not an effective means of determining whether a veteran is able to follow an SGO.
- The VA denies your claim by concluding that it is your non-service-connected impairments that preclude your ability to work.
- The VA often makes the mistake of concluding that you are not eligible for a TDIU rating because your non-service-connected impairments are disabling, when this consideration is actually quite irrelevant to the issue at hand: whether your service-connected impairments alone preclude your ability to follow an SGO. In fact, there are many veterans who are unable to work as a result of their service-connected impairments alone and are also unable to work as a result of their non-service-connected disabilities alone. Imagine a veteran who cannot work due to severe service-connected PTSD; whether this veteran is also unable to work due to orthopedic injuries caused by a post-service car accident is immaterial. As long as a veteran is unable to work due to his or her service-connected disabilities alone, the VA should grant him or her a TDIU rating.
- The VA denies your claim because it improperly considers your unearned income as earned income, which results in a finding that you have been and continue to earn income at a rate above the federal poverty line.
- This is a common error that the VA makes at the initial application stage. If a veteran is receiving short- or long-term disability payments, such income is unearned income, meaning that the VA cannot use this income to state that your earnings exceed the federal poverty threshold and eliminate your entitlement to a TDIU rating. Similarly, if you are a veteran who receives distributions from an ownership stake in a business, royalties from past work, or passive investment income, this income is unearned and the VA cannot deny your TDIU claim by misconstruing this income as earned income in excess of the federal poverty line. Nonetheless, rating specialists adjudicating initial claims often lack the training and supervision necessary to differentiate unearned income from earned income, and so initial decisions may improperly deny TDIU claims on the above basis.
- The VA denies your claim for a TDIU rating by only assessing your entitlement to a TDIU rating based on the conditions you identified as disabling on VA Form 21-8940, the VA’s application form for a TDIU rating.
- Though not as common as some of the above errors, it is often the case that the VA will deny a claim for a TDIU rating because it only considered the service-connected disabilities that a veteran listed in Box 8 on the VA Form 21-8490, which asks veterans to identify “what service-connected disability prevents you from securing or following any substantially gainful occupation.” This is facially improper as the law requires that the VA consider the combined effects of all of a veteran’s service-connected impairments in adjudicating a claim for a TDIU rating. However, in practice, some initial decision-makers at the VA deny claims on this basis, which is why it is important for veterans to complete VA Form 21-8490 in a thorough manner and include all of his or her most disabling conditions in Box 8, if not every single service-connected condition. This can be accomplished in the form’s Remarks section or via an attached supplemental statement.
- The VA denies your TDIU claim by asserting, “The evidence of record shows you have significant disabilities that are service connected, however, these conditions alone are not so severe as to preclude ALL employment. Your service-connected disabilities are appropriately accounted for by the application of the rating schedule.
- This is a classic improper and erroneous rationale that the VA uses to deny claims for a TDIU rating. Here, the VA is mistating its own standard for entitlement to a TDIU, which, as we know from the above section on the difference between a substantially gainful occupation (SGO) and marginal employment, is that a veteran’s service-connected impairments precludes his or her ability to follow any SGO; it is not necessary for a veteran’s service-connected disabilities to preclude him or her from ALL work as marginal employment is allowed. By imposing a stricter requirement than the VA’s actual requirement under both VA regulations and the VA’s Manual M21-1MR, decisions denying veterans on this basis commit harmful legal error.
If your claim for a TDIU rating has been denied, please contact The Veterans Law Office for a free case evaluation. Our veterans disability attorneys will review your rating decision and complete a telephone consultation with you so that we can assess whether there is an effective strategy to win your claim for a TDIU rating. If you feel you are unable to work due to your service-connected impairments, our office is here to help.