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.
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:
Substantial gainful employment
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.
You will need to show that you cannot do your prior occupation or your prior work.
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.
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.
I highly recommend Travis and his team. From start to finish, the communication and professionalism were outstanding. Jessica was absolutely amazing — responsive, knowledgeable, patient, and always willing to help answer questions and keep me informed throughout the process.
Travis was also excellent and made me feel confident that I was in good hands. Their entire office treated me with respect and care, and I truly appreciate everything they did for me. If you’re looking for an attorney and legal team that genuinely cares about their clients, I would definitely recommend them.Carlos Thornton
Travis Studdard and his team were always professional and from intake to case resolution, they were extremely pleasant to work with. After working closely with them for roughly six years, they successfully appealed my sleep apnea claim with the VA. At times I thought about giving up, but it was their diligence and confidence in their approach that gave me the ability sustain. There were no surprises, they led me by hand every step of the way. My family and I are truly appreciative for their great work. His team truly cares and it shows. They will fight to the end for veterans. I couldn't be happier with the results.James
I had the pleasure to be helped by Travis and his team on my VA disability claim. They know what they are doing, and I would definitely work with them again. I recommend them to any veteran that has a wrongfully denied claim with the VA...Joel Onomo
Travis and his team helped me get my case done when I couldn't get it done by myself.Everything went much faster and better than I expected.I highly recommend his team for any veteran trying to get a claim processed. Norman Scott,U.S.Army veteranNorman Scott
Jason Perkins and his team are so kind, knowledgable and helpful. They were thorough with all my legal needs and made sure my medical needs were taken care of financially. What I most appreciate is that he was always very clear about what was best for my case, but he also always told me I needed to do what was best for me, both mentally and physically. He was always available to answer questions, made sure I understood, and was willing to let me make decisions regarding my case. His ethics are beyond reproach. He would not take a percentage of a payment he did not help me receive. You can trust him. He always made it clear that my mental and physical well-being were more important than any part of my case. Then he would explain what would be best for the case and why, and allow me time to decide. Being in the Worker's Compensation system was an incredibly demeaning experience. I am a strong, educated woman, but when everyone in a system tells you that you are not worthy of the care you have received your entire life, and you instantly become less than to many of those who are suppose to be caring for you, it would weigh on anyone. I am so thankful I had Jason and his team fighting for me, getting me things I never would have imagined would be denied, like a second opinion before surgery, or physical therapy instead of opioids. I cannot imagine trying to handle this experience by myself.Andri Pilgrim
Would definitely recommend 10/10! The team was super helpful through the entire process, and always were available for questions anytime I needed. Always quick to respond, and we’re always sweet and professional!Haley Nicole
Perkins Studdard LLC has been wonderful to work with from the first day through the final journey. They were prompt in requesting the information from me so they could appeal my claim with the VA. I had exhausted all means trying but they were able to get me to 100%. I would "HIGHLY" recommend using them if you are having difficulty getting anywhere with the VA.Mike Black
When i found this law firm I was going through a hard time not just with the VA but mentally as well. And after i hard denial i reached out to Travis and let me just say that was the best decision of my life. From the first call i knew i had made the right decision they are nothing short of amazing. Shoutout to Jessica and Chandler they both helped ease my stress and make the process so smooth it felt really good to be heard. My only mistake was not reaching out to them sooner. Thank you all so very muchRilesia Singleton
Perkins Studdard LLC has done for me what VSO, the DAV, and I could not do on my own. For 10 years after my last rating the VA was bound and determined to keep me at my current percentage. My body was tired physically and mentally. I needed help that the civilian world was not going to let me stop work for. I contacted Perkins Studdard and worked with Jessica and Travis. To tell you what I ever hoped for was greatly exceeded. I am able to now properly heal since 2007 when I was medically discharged. I promise when we feel like we are forgotten you have people like Travis and Jessica that work hard for you to make sure you are not. Their policy on pay is exceptional and even when I got aggravated they understood how to keep me calm and helped my patience. I think the VA does not like to see them coming. I got the holy grail, home run, I can breath decision I needed. Let them help you!Lisa Jordan
I have enjoyed my experience with Perkins Studdard. The team is always available to answer questions and make me feel comfortable, and like I matter. Did a great job with my VA Disability.Matt Strange
I understand you want your VA claim to be done as quickly as possible. But remember the ultimate goal – to win your VA disability compensation claim.
You may eventually get there on your own, but it may be after a series of decisions by the Regional Office and Board of Veterans Appeals. Sometimes claims are appealed and remanded several times, which can cause a claim to drag on for years. If you are interested in avoiding unnecessary delay in your claim and want to do everything you can to maximize your chances of success, it is probably a good idea for you to consult with an accredited veterans disability attorney.
We would be happy to talk to you. If you would like a free consultation with our Perkins Studdard veterans disability attorneys just click here or give us a call to begin the process.