VA Proposed to Terminate My TDIU: The Rules That Apply

What usually triggers the proposal

• Income reported to VA through IRS/SSA data matching that exceeds the poverty threshold for one person.
• A returned or unreturned VA Form 21-4140 employment questionnaire, or an employer's answers on VA Form 21-4192.
• A routine future examination that describes improvement in the service-connected conditions.
• A VA medical record noting the veteran is working, volunteering substantially, or attending school full time.

The standard VA has to meet

38 CFR § 3.343(c) is narrower than the general reduction rule. For a total rating based on unemployability, actual employability must be established by clear and convincing evidence, and if the veteran has begun to work, the rating may not be reduced solely on that basis unless the employment has been maintained for 12 consecutive months. A single period of attempted work that fails is not a basis for discontinuance.

Marginal employment is not substantially gainful employment. Under 38 CFR § 4.16(a), earnings that do not exceed the Census Bureau poverty threshold for one person are marginal, and employment in a protected environment such as a family business or sheltered workshop is treated as marginal regardless of earned income.

In a reduction or severance case the burden sits with VA, not with the veteran. VA must show that the record supports the action under the governing regulation; the ordinary rule that a claimant must prove entitlement does not apply in the same way. Brown v. Brown, 5 Vet. App. 413 (1993); Kitchens v. Brown, 7 Vet. App. 320 (1995).

The procedure before anything stops

• VA issues a written proposal explaining the action and the evidence behind it. 38 CFR § 3.105(e).
• 60 days to submit additional evidence; 30 days to request a predetermination hearing. 38 CFR § 3.105(e), (i).
• The current payment level continues through the notice period. If VA later finalizes the action, the reduction takes effect the last day of the month following 60 days from the final notice.
• If TDIU has been in place continuously for 20 years or more, 38 CFR § 3.951(b) protects the evaluation from reduction except on a showing of fraud.

What actually responds to the proposal

• Documentation of what the reported income actually was — severance, retirement, disability retirement, a spouse's income on a joint return, or accrued leave payout are not current earnings from work.
• Evidence that any work was marginal or in a protected environment: hours, accommodations, absences, and the nature of the employer relationship.
• Treatment records covering the full period VA reviewed, not just the exam date, to show the condition's actual course.
• An explanation of any failed work attempt, including the reason it ended.

Fee rules

An accredited agent or attorney may charge a fee only for work performed after VA issues a decision on the claim (38 U.S.C. § 5904(c)(1); 38 CFR § 14.636(c)). Fees must be reasonable, disclosed in writing, and filed with VA. Nothing here predicts an outcome in any individual case.

Check the proposal letter against these

A TDIU termination proposal is built from a small number of documents. What those documents actually say usually decides the case.

Reading the proposal, the employment questionnaire, and the examination report together is what identifies which of these applies. No outcome is predicted from any single item.

Frequently Asked Questions

References & sources

1. 38 CFR § 3.105 — Revision of decisions (reduction and severance procedure) — Code of Federal Regulations
2. 38 CFR § 3.343 — Continuance of total disability ratings — Code of Federal Regulations
3. 38 CFR § 3.344 — Stabilization of disability evaluations — Code of Federal Regulations
4. 38 CFR § 3.951 — Preservation of disability ratings — Code of Federal Regulations
5. 38 CFR § 3.957 — Service connection protected after 10 years — Code of Federal Regulations
6. 38 CFR § 3.327 — Reexaminations — Code of Federal Regulations