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Frequently Asked Questions About Total Disability Based on Individual Unemployability (TDIU) Benefits

Experienced VA benefits attorneys answer your questions

Marcari, Russotto, Spencer & Balaban understands how important your veterans’ benefits are to you and your family. If you are unable to hold gainful employment because of a service-related disability, we are determined to help you qualify for total disability based on individual unemployability (TDIU) benefits. We offer this list of frequently asked questions to get your inquiry started. If you need additional information, do not hesitate to contact us.

Let us stand up for you

Obtaining VA benefits can be an uphill battle. If you need a strong ally, Marcari, Russotto, Spencer & Balaban is ready to help. There are never any upfront charges for our services, and you pay nothing unless we win your claim for benefits. The benefits appeal process could take years, but if we prevail, you receive an initial lump sum for all retroactive payments. The VA automatically deducts 20 percent from this sum of our legal fees.

Even if you can’t make it into our offices, someone is always available to assist by phone. Call our office today at 866-866-VETS or contact us online.

What are TDIU benefits?

TDIU is a monthly payment from the VA for veterans whose service-related disability prevents them from maintaining gainful employment.

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Who can receive TDIU benefits?

Veterans may qualify if their service-related disability is not rated at 100 percent but still prevents them from working. Your single disability must be rated at least 60 percent, or you must have at least two disabilities that total more than 70 percent, with one disability rated at least 40 percent. Then you must present medical evidence that your disability prevents you from getting or keeping gainful employment.

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What if I don’t meet the percentage requirements?

Veterans can still qualify for TDIU benefits if they do not meet the “schedular” percentage requirements under “Extra-schedular TDIU.”Extra-schedular TDIU, like regular TDIU, still requires you to show that your service connected disabilities alone render you unemployable. The burden of proof will be high, and the VA will be very reluctant to award this type of TDIU as it is non-traditional. Be prepared to fight your case at the Board of Veteran’s Appeals. Your case will require at least one expert testimony, if not several. Your case will have to present “exceptional circumstances” essentially that show that the current disability rating schedule, in your case, is wholly inadequate and unrepresentative.  Generalized statements will not suffice. Once the Regional Office determines that there are exceptional circumstances, it will refer your case to the Director of Compensation and Pension for a decision. The Director has sole discretion in making his/her determination. If you lose it will be very difficult to win an appeal.

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Can reservists qualify for TDIU benefits?

National Guard and Armed Forces Reservists can qualify if they were active duty at one time and their disability is service related to that active duty period.

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How much pay would I receive for benefits?

TDIU pays the same rate as a 100 percent VA disability benefit. The monthly minimum payment under TDIU is currently $2,906.83. Veterans with dependent children and parents receive extra monthly benefits.

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Could I be due past benefits from TDIU?

The Veterans Administration is notorious for clerical oversights. If the VA made an error that delayed paying you benefits on time, you can collect amounts owed based on your date of eligibility.

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Can I collect Social Security and TDIU benefits?

It is lawful to collect both TDIU and Social Security disability benefits without there being a financial offset.

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What type of impairment might qualify me for TDIU benefits?

Any mental or physical impairment that prevents you from earning a living and is service related potentially qualifies you for TDIU. Conditions include depression, PTSD, chronic fatigue, fibromyalgia, traumatic brain injury (TBI), and ischemic heart disease.

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How do I apply for TDIU benefits?

You must complete and submit Form-21-8940.

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What if my TDIU claim has already been denied?

You have one year to apply for a denial. If you do not act within that year, you must re-apply from the beginning.

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What if it’s been many years since I served?

As long as you received a discharge that was not dishonorable, you may apply for TDIU at any time.

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What can I do if my disability has been rated too low?

You can appeal a low disability rating just as you would a denial of a claim for other benefits.

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What is meant by “gainful employment”?

The VA does not have a hard-and-fast definition of “gainful employment,” but takes it to mean consistent work for payment by an employer. If you perform odd jobs or occasional tasks for pay, the VA would not consider you gainfully employed. Additionally, employment may be marginal, rather than gainful, when the 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. In other words, if your income exceeds $12,331 (for 2015 at least), then you are deemed to have “gainful employment” and are ineligible for TDIU.

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  • Thank to Mr. Spencer I was able to get my VA disability claim re-reviewed and given another chance to receive disability. By far he is one of the most professional lawyers I have ever dealt with. So Veterans if you are looking for help with your VA disability claim I would suggest that you hire Macari, Russotto, Spencer, & Balaban. Thanks again for everything.

    — Alfred Daye

  • As a disabled veteran trying to navigate the complexities of the Veterans Administrations regulations, I turned to the law firm of Marcari, Russotto, Spencer and Balaban. They helped me understand what I needed to do and prepared and presented to the VA an excellent presentation of my case. I recommend them for your legal needs.

    — Harry Johnson

  • I was very satisfied with the excellent and professional manner the law firm handled my claim. I highly recommend any veteran who needs help with his or her claim to use Marcari, Russotto, Spencer & Balaban P.C. Special thanks to Mr Spencer for being very professional and courteous during the appeal process. Again Thanks to the entire firm for a job well done!

    — Luther Henderson

  • My husband & I highly recommend this law form to any veteran trying to navigate the endless red tape of the VA. We turned to Marcari, Russotto, Spencer & Balaban to handle my husband's appeal and could not have been happier. We enjoyed open and consistent communication regarding our case. Any questions we had were answered immediately.

    — Michele DeZayas

  • Amanda Medina-Morales was our point of contact and she kept us up to date on the progress of our case. It was a pleasure and relief knowing that someone truly competent and professional was handling this and fighting for us.

    — Michele DeZayas

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