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Individual Unemployability

by Joe Whitcomb / June 22, 2017

VA disability compensation can be a tricky thing. Nearly all veterans are aware that they may qualify for compensation for injuries suffered or aggravated by their service. But many veterans are unaware that they may qualify to be paid at a 100% disability rate (the current effective rate pays $2,915.55 per month) for service-connected disabilities that inhibit them from securing a “substantially gainful occupation,” regardless of whether they are 100% service connected. This is known as Total Disability Ratings Based on Individual Unemployability of the Individual, or TDIU for short.

How to Qualify

To qualify for a TDUI, you must have a:

  • A single service-connected disability rated at 60% or higher or,

  • A combined service-connected rating of 70% based on multiple disabilities, one of which is rated at 40% or higher.

For example, a veteran’s PTSD is rated at 70%. If that individual’s PTSD is so severe that he or she cannot work, or can only obtain marginal employment, he or she may have a claim for TDIU and individual unemployability. If approved, the veteran would be entitled to be paid as if he or she received a 100% rating, resulting in the veteran receiving $1,576.84 more per month.

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A veteran may show entitlement to TDIU in two ways:


  1. Show that the veteran does not have the ability to engage in substantially gainful employment. A veteran may be able to establish this by showing that he or she does not have the ability to perform work with reasonable consistency or requires significant employment accommodations.

  2. Show that the veteran’s current employment is “marginal” (marginal employment is not substantially gainful employment).

    • Employment is generally marginal if the veteran’s income is less than $12,486 (the poverty threshold for one person in 2016). NOTE: this is not a bright line rule, where the VA will automatically grant a TDIU claim if the veteran’s income falls below $12,060. Instead, the VA will look at whether that job shows the veteran has the capacity to secure substantially gainful employment. This may include looking at the veteran’s hours.

    • If the veteran’s income is greater than $12,060, he or she may show their employment is marginal if it is a protected work environment, such as a family-owned business or sheltered workshop.

The VA has purposely chosen not to define what “in a protected work environment” means, and as a result, the Rating Offices and Board of Veterans’ Appeals decide the issue on a case-by-case basis. This position was chastised by the Court of Appeals for Veterans Claims in a recent case  revolving around the definition of “in a protected work environment.”

In that case, the veteran was employed as a park ranger, and his employer went to great lengths to accommodate his disabilities. The Board of Veterans Appeals noted that the veterans’ employment was not a protected environment because he had “substantial responsibilities” and the accommodations allowed him to “perform his job successfully and on a full-time basis." The Court did not think these were sufficient reasons for deciding the veteran was not in a protected work environment and remanded the case for further analysis.

The VA has failed to define what a protected work environment is, so there are plenty of arguments to be made if you feel your disabilities are holding you back from successful, gainful employment. The attorneys at Whitcomb, Selinsky Law PC and its sister firm, Rocky Mountain Disability Law Group (RMDLG), are experienced in these types of claims.  Please call (303) 534-1958 or complete an online form.


Tags: Veterans Disability

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Joe Whitcomb

Joe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.

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