Can I Qualify for VA Unemployability Over 65?
If you are receiving VA disability compensation and cannot work, you may be eligible for Total Disability Based on Individual Unemployability, or TDIU. While you may have thought that you cannot get this benefit after turning age 65, the VA cannot consider age when evaluating TDIU claims. The primary factor the VA uses to determine TDIU eligibility is the impact of your service-connected disabilities on your daily life and ability to work.
Learn how to qualify for TDIU, how to prove your eligibility, and what rules the VA must follow when evaluating applications for TDIU over 65.
What Is VA Unemployability, or TDIU?
Total Disability Based on Individual Unemployability, known as TDIU, is a program for veterans with service-connected disabilities that prevent them from maintaining substantially gainful employment but who don’t have a 100 percent VA disability rating. TDIU raises your disability compensation to the amount you would receive if you had a 100% disability rating.
To qualify, you must have a service-connected disability that makes it impossible to maintain steady employment. You must meet one of the following criteria:
- You have one service-connected condition with a disability rating of at least 60%.
- You have multiple qualifying disabilities with a combined rating of at least 70% and one disability rated 40% or higher.
There are limited exceptions to these minimum requirements. For example, you may qualify for an exception if your condition requires frequent hospitalizations. The VA does not consider age or retirement status when evaluating TDIU eligibility.
Does Age Affect TDIU Eligibility?
Under 38 C.F.R. § 4.19, the VA cannot consider the applicant’s age when evaluating a disability claim. The VA can only consider the following:
- The veteran’s medical diagnosis
- The symptoms related to that condition
- The functional limitations resulting from that condition
How to Prove Unemployability After 65
The VA will use your medical records and employment history to evaluate your eligibility for TDIU. The evidence must prove you have functional limitations that make it impossible to work, and that these limitations result from a condition connected to your military service.
Gather Strong Medical Evidence
Your medical information must prove that service-connected disabilities, and not age-related decline, are the reasons you cannot work. Your medical records must show how your diagnosis prevents you from working.
Suppose you have significant service-connected hearing loss. Your medical record will need to show what specific limitations you have because of the hearing loss. These could be difficulties understanding instructions, communicating with others, or detecting safety alarms.
If your diagnosis is a respiratory condition, the limitations might be an inability to walk, get out of bed, or sit up without becoming winded.
Provide a Clear Employment History
The VA will request a comprehensive employment history to assess your service-connected condition and its impact on your previous jobs. Your employment history helps establish a timeline that shows when your condition began affecting your work. The VA will also try to establish whether you stopped working because of your condition or because you voluntarily retired.
Submit VA Form 21-8940
VA Form 21-8940 is the Application for Increased Compensation Based on Unemployability. It asks for a list of your service-connected conditions that prevent you from working. It will ask for information about the following:
- Medical treatment
- Work history
- Education and training
This form is a critical part of the disability process. One of the most common mistakes is not including specific details about how your limitations are directly linked to your service-connected condition.
How To Answer Questions About Your Disability
Don’t say, “I can’t work because my back hurts.” Answer with specific details about why the back pain makes it impossible to work.
For example, you could say, “My service-connected lumbar spine injury causes me extreme pain if I sit for longer than 20 minutes. I can only stand for about 10 minutes before the pain becomes unbearable. My old job required me to lift up to 50 pounds, but I can barely lift 10 pounds, and I can’t bend over at all without severe pain.”
Include Supporting Statements
Your doctor only sees you during the few minutes you spend in the doctor’s office or when you are in the hospital. These short visits are not representative of your everyday life, so the VA knows your doctor’s observations are limited. To strengthen your claim, ask people who see you in everyday environments and workplaces. These types of statements are also known as buddy statements, and they can play an important role in helping the VA understand the extent of your limitations.
Buddy statements from the following parties can strengthen your claim:
- Former employers
- Former coworkers
- Your spouse
- Family members
- Friends
Employers can describe the accommodations you needed at work and why you had to stop working. Co-workers can describe specific incidents in the workplace and how your condition has affected your ability to perform your duties. Friends and family members can describe the limitations you live with every day.
How Retirement and Other Benefits Affect TDIU
Receiving Social Security retirement, survivor, or disability benefits does not disqualify you from TDIU. The Social Security Administration and the VA operate independently, and each program evaluates eligibility differently. You may be able to receive Social Security benefits and TDIU, as long as you meet the criteria for both programs.
One important difference between Social Security Disability Insurance, or SSDI, and VA unemployability benefits is the rule regarding those 65 and older. Individuals 65 and older are not eligible for SSDI. Once an SSDI beneficiary turns 65, SSDI benefits end and are replaced by retirement benefits. Thus, many veterans assume the TDIU is unavailable after 65. However, age has no bearing on VA disability or unemployability decisions involving service-connected disabilities. Learn more about how SSDI and VA benefits interact.
Tips to Strengthen Your TDIU Claim if You’re Over 65
Age is not supposed to affect TDIU eligibility, but the VA may unfairly deny your application by blaming age-related decline. You can strengthen your application by establishing a strong connection between your service-connected injury or illness and your inability to work.
Document Daily Limitations
Be specific about your symptoms and describe what you are unable to do because of them. Rather than saying, “I have pain,” talk about how the pain keeps you from working. For example, say, “I cannot stand or walk without support because of my pain.” Obtain buddy statements to confirm your daily limitations.
Check Your Medical Records
Your medical records must show that the service-connected condition, and not age-related decline, is the cause of your disability. Ask your doctor to include notes in your records specifying how your functional limitations are linked to your disability. If you see notes indicating a connection to your age, ask your doctor to clarify what is service-connected and what is age-related or obtain a second opinion.
Consider an Independent Medical Examination
If the VA examination report is weak, an independent medical examination, or IME, can fill in gaps in the evidence. An IME is an examination by a non-VA doctor who can review your medical records and provide a second opinion. While this option can be costly, it could make the difference that gets your claim approved.
Work with a VA-Accredited Representative
A VA-accredited attorney or VSO will understand how to frame your evidence to focus on disability rather than age.
Need Help with a TDIU Application?
Age is not supposed to be a deciding factor for TDIU benefits, but the VA may incorrectly attribute your inability to work to age and not a service-connected condition. The examiner may make erroneous assumptions based on your age. The key to a successful TDIU claim is clearly tying your disability to your service-connected injury or illness. A combination of medical opinions, employment history, and buddy statements can help you make your case.
At Veterans Guide, we’re here to simplify the claim process and provide the resources you need for approval. If the VA has improperly denied your claim based on your age, we can help you file an appeal and pursue the benefits you’ve earned. You don’t have to go through this alone.
Contact us today, and take the first step to getting your TDIU claim approved.
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