How VA Defines Unemployable for TDIU

Many veterans have a service-connected disability that makes it difficult for them to work.  Sometimes, veterans find it difficult to work as a combination of disabilities.  When does that difficulty to work rise to the level of unemployability?

You will find it difficult to succeed in a total disability individual unemployability (TDIU) claim if you do not understand VA’s concept of “unemployability”.  In this article, I will try to tell you more about unemployability and how understanding it can improve your chances of getting a 100% rating.

Injured worker tries to return to work What does it mean to be unemployable according to VA rules?

38 CFR 4.16 is the section in the federal regulations that define unemployability.  VA considers a veteran to be unemployable if they are unable to obtain or maintain substantial gainful employment.

So, the definition of unemployability leads you to two other concepts that you need to understand:

  1. Substantial gainful employment
  2. Inability to obtain or maintain

What does substantial gainful employment mean?

If you have familiarity with Social Security disability, you may have any understanding of substantial gainful employment.  Basically, the idea is regular work that could pay your bills.

Legally, the concept of substantial gainful employment breaks down into two parts.

  1. You will need to show that you cannot do your prior occupation or your prior work.
  2. Even if you meet this first standard, you also have to prove that you are unable to perform other occupations as they normally would be performed in the national economy.

This is really a basic explanation of these two concepts.  I will discuss both the inability to do prior work and the inability to perform other occupations in the national economy in more detail in future articles.  Just be sure and understand that you have to show both things to qualify for TDIU.

What does inability to obtain or maintain substantial gainful employment mean?

Once you understand substantial gainful employment, you need to understand that you have to show the inability to obtain or maintain it to show you are unemployable.   Once again, this is two separate things.

Obtaining employment means what it sounds like.  Do your service-connected disabilities prevent you from getting substantial gainful employment? If you can prove this, you should meet VA’s definition of unemployable.

Psychiatrist Of course, we know that getting a job does not mean you can keep a job.  That fact goes to the “maintain” part of the definition.

Suppose you  have a great interview and get a job, but your service-connected disabilities are going to require you to be out of work multiple days a month.  Or, maybe you can only work a few hours a day and your concentration is very poor while you are at work.

Your work product probably would not be good.  Most employers do not want employees out of work several days a month.  In these situations, the likelihood of you keeping a job is pretty low.

If I can prove I am unemployable, do I qualify for TDIU benefits?

Proving that you are unemployable is a large part of what you need to do.  But, you should also consider that your unemployability needs to be a result of your service-connected disability or disabilities.

Also, VA does not automatically grant you TDIU.  You will have to apply for TDIU.  You also have to prove you qualify.

The benefits of getting a 100% rating through TDIU are substantial.  At the same time, many veterans find TDIU even more difficult than other VA claims because of the numerous different legal concepts involved.

If you have questions about your TDIU application, please feel free to reach out to us.  Our firm provides free consultations to veterans regarding their veterans disability benefit claims.  You can set one up by calling us at (770) 214-8885 or completing and submitting the form on this page.

If you would like to find out a little bit more about how the free consultation process works, this short article I wrote explains it.  I hope you find it helpful.

Travis Studdard is an attorney who focuses on representing veterans in VA disability compensation claims.  He regularly writes about issues that are important to veterans and their families.

You can subscribe to his Veterans Disability channel on YouTube.

Rita BarnesRita Barnes
00:03 20 Jan 22
This is a great group of people who really care about your well being. They all treated me as though I was family and helped me with my work comp case in more ways than the average would have.Thank you Jason and Thank you Tina! For doing an awesome job.
Cortex ButlerCortex Butler
18:09 29 Dec 21
I am a Veteran of United States Air Force and was awarded my first 30% in 1996 and have been fighting for my rating for 26 years I came to Perkins and Studdard in 2019 while my mom was in a terrible incident and was given to much anesthesia and through GODS Grace she was spared her life, She is disabled since 2018 and I have been struggling with my life and issues and yet I didn’t call the law firm every 10 minutes or call being rude anytime, I mentioned this as I got to know Jessica more than just a phone call and Mr Studdard was always available when not working on other cases or in court, They always called back and Never had to do a call back, My Review is Simple in Life there peaks and valleys and it doesn’t stop because you have issues, Perkins & Studdard took my case in 2019 in 2021 I received my 100% from VA, I Was Never Rude, I was Never Promised Success, I Was Never Lied too and I was Always Treated with Respect, Friendliness, and Kindness the Real Stuff not a (Money Thing) If You want a firm that Cares about the Client and will work on your case even through a pandemic, Will not lie, will not promise anything will communicate your case and will Give you their Best ALWAYS THIS IS THE Best Law Firm for VETS HANDS DOWN Perkins and Studdard THERE IS NO OTHER 100% we had 5 calls Total Case That’s Taking Care Of Business
annetteMomma nokesannetteMomma nokes
14:29 12 Sep 16
Jason and his paralegal Lisa were on point and on top of their game when it came to handling my worker's comp. injury case. I tried going it alone and the insurance carrier pushed me around. They denied extra physical therapy. They denied injections the doctor recommended to ease my pain. When I turned my case over to Jason things turned around, QUICK. They were at all times attentive and on top of my case. I cannot recommend Jason and his staff enough. If you are hurt at work, this is the firm you want on YOUR side.
Sheila KirklinSheila Kirklin
23:11 12 May 16
Jason Perkins, was my lawyer in a workers comp. case, my case has settled now, and I am very happy for all Jason and his office hard work on my case, he was always there to help me out with any questions that I had or help I needed. Jason is a excellent lawyer and if I ever need another one I would only go to Perkins,Because I believe they would be able to help me in any situation I am in need of..
Anna PabonAnna Pabon
23:16 13 Sep 15
I recommend Perkins Law Firm. Everyone I came in contact with there was very nice. Kim was very helpful and any time I had a question she made sure I got an answer. Ann Margaret really took the time to explain things to me.

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