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Another Short Analysis of What It Takes to Get TDIU Benefits

The Veterans Court [Court of Appeals of Veterans Claims] has defined the term "substantially gainful employment" for the VA in the Ray v. Wilkie case (A qualifying veteran who is unable to secure and follow substantially gainful occupation because of his or her service-connected disabilities is entitled to a 100% rating.).  

Substantially Gainful Employment” has two components -- an economic component and a non-economic component.

  1. Economic component: You have substantially gainful employment if you have an occupation earning more than the poverty threshold (see this link for years from 1978-2018) unless you have "marginal employment" or are in a "protected work environment" --- the VA should not count Social Security Disability or Retirement earnings.

  2. Non-Economic component: What you need to prove depends on your situation. There are two critical ways to prove the non-economic “substantially gainful occupation” factors: Lay evidence and Expert evidence. 

For reference, A list of factors the Court has said should be considered: the veteran’s history, education, skill, and training whether the veteran has the physical ability to perform the type of activities required by the occupation at issue.

Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and,whether the veteran has the mental ability to perform the activities required by the occupation at issue.

Additional relevant factors include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.


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