What is Individual Unemployability (IU or TDIU)?
If you’re a veteran who is unable to work due to your service-connected disabilities, and you have a combined rating of less than 100%, then you will want to apply for what is called a “totally disability rating based on individual unemployability,” abbreviated as IU or TDIU.
TDIU is where the VA pays you at the 100% disability compensation payment rate even though your combined rating is less than 100%. The VA awards IU in recognition that you are unable to maintain a job due to symptoms from your service-connected disabilities.
How do I apply for TDIU?
To apply for individual unemployability, you will need to complete and submit to the VA an “Application for Increased Compensation Based on Unemployability” (VA Form 21-8940). On the application for TDIU, you must give the VA information about your past employment history (if any) and identify the service-connected disabilities that make you unable to work. Remember, you can’t include any disabilities that are not service connected. You’ll also want to include a couple sentences in the remarks section explaining in your own words how your service-connected disabilities impact your ability to work.
After you submit the VA Form 21-8940, the next step will be the VA scheduling you for C&P examinations for any of the disabilities that you listed on the form. If you told the VA that you can’t work due to service-connected PTSD, sleep apnea, and a back condition, then you will have to undergo C&P exams for each of those disabilities. The exams will be just like a regular C&P examination except that the VA will ask the examiner to give their opinion about how your disabilities impact your ability to work.
Following the C&P examinations, the VA will issue a rating decision either denying or granting entitlement to TDIU. The VA usually relies on the recommendation from the C&P examiner – if the examiner opines that you are unable to work due to your service-connected disabilities, then the VA will likely grant IU.
However, the C&P examiners are medical experts, not vocational experts, and they often state that a veteran can work because they don’t understand the basic requirements to maintain employment. For example, I often see C&P examiners say something like “Mr. Veteran’s symptoms are severe, but he would thrive in a work environment where he can set his own schedule, take as many breaks as he wants, and doesn’t have to interact with people.” As you can imagine, there are no jobs that would allow an employee to set their own schedule, take as many breaks as they want, or not interact with people.
But the VA will rely on that type of (inadequate) opinion and deny the TDIU claim. This unfortunately happens often and most initial claims for individual unemployability are denied.
How do I Appeal the VA’s Denial of IU?
If you are denied entitlement to individual unemployability, the next step is to appeal. You have one year to file your appeal and your options are to file a Request for Higher-Level Review (VA Form 20-0996), a Supplemental Claim (VA Form 20-0995), or a Notice of Disagreement (VA Form 10182).
The first two options, Higher-Level Review and Supplemental Claim, are appeals that will be handled at the regional office level, which is the lowest level within VA. In a Higher-Level Review, you are not allowed to add any additional evidence, so you are asking the VA to re-look at the existing evidence and make a new decision. You only want to use the Higher-Level Review option when the existing evidence is very strong.
In a Supplemental Claim you are permitted to add additional evidence. The most important piece of evidence that you can add in a TDIU appeal is a vocational assessment from a vocational expert. A vocational expert has special training to give opinions about how a disability impacts a person’s ability to work.
Your final option is to file a Notice of Disagreement and skip the regional office appeals and go directly to the Board of Veterans’ Appeals. While the chances of success are higher at the Board, the Board currently has a 3-year backlog of cases, so you will have to wait in line multiple years before receiving a decision.
Remember, you can first try a Higher-Level Review and/or a Supplemental Claim appeal, and if those are denied, go to the Board at that time.
How Can a VA Disability Attorney Help?
Winning a claim or an appeal for individual unemployability is critical because you’re unable to work and being paid at the 100% payment rate can have a big impact on you and your family. It can be the difference between having a roof over your head or being homeless.
The TDIU claim and appeal process is complicated, and the VA relies on veterans giving up. An experienced VA disability attorney can make the process go much more smoothly by helping you develop and obtain the evidence needed to win the IU claim/appeal. As described above, it is oftentimes necessary to hire an independent vocational expert to put together a vocational assessment that clearly explains to the VA why your service-connected disabilities render you unemployable.