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.

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