Working & Receiving TDIU at The Same Time: Yes, It’s Possible
Many of the blogs on our website have discussed the concept of Total Disability Due to Individual Unemployability (TDIU) or IU, and the criteria for obtaining these VA disability benefits. As these blogs have hopefully made clear, there are many different ways to obtain IU benefits. One issue that frequently arises in this context is whether a Veteran who is working is able to obtain VA unemployability, also known as TDIU or IU. This may seem like an obvious “yes or no” answer. But of course, when you’re dealing with most legal issues and especially the Department of Veterans Affairs, there rarely is a clear cut “yes or no.” The best answer to this question is that it depends.
TDIU is not Social Security Disability
It is easy to equate the VA’s version of total disability with Social Security Administration’s version. The important thing to remember is that IU Veterans benefits is not structured in the same way as Social Security Disability (SSD). In many ways, the requirements to obtain IU benefits (being paid at the 100% rate) are more lenient than those of Social Security. In order to qualify for SSD, you must be found to be completely unable to work, under any conditions or circumstances. Typically, this finding is backed by the opinion of a vocational expert and/or a medical professional.
What does the VA consider for TDIU Claims?
If a Veteran is working and also filing a disability claim for VA unemployability, the VA will look at the Veteran’s earnings from the work. Specifically, the VA is looking to see if the Veteran is maintaining substantial gainful employment. The VA defines “gainful employment” as any earnings from work that are above the annual poverty level as determined by the Census Bureau. This means that by definition, work below the poverty threshold is not considered to be gainful employment. In fact, the VA defines work below the poverty threshold as “marginal” employment. The VA regulation further provides that even if annual income exceeds the poverty threshold, if the Veteran is working in a “sheltered” environment (protected work environment) or for a family business, he or she may still have eligibility for IU benefits. Now, let’s look at each of these situations individually.
Substantially Gainful Occupation – Working and VA Unemployability
Under VA regulations, however, the benchmark for IU claims is not whether or not the Veteran is capable of working; it is whether or not the Veteran can engage in substantially gainful occupation. According to the VA’s procedural manual, substantially gainful occupation refers to “an occupation that is ordinarily followed by the non-disabled with earnings common to the particular occupation in the community where the Veteran resides”. In other words, substantially gainful occupation is a job that a non-disabled person can perform, with earnings above the poverty threshold. For example, “substantially gainful” might include a job as an office clerk, a bookkeeper, a flight attendant, or a sales associate. A substantially gainful occupation would require the employee to be competent, efficient, and reliable.
This is important, because “substantially gainful” is not the standard that the regional office raters use. Instead, they tend to drift toward the Social Security mindset, where the Veteran has to prove that he or she is completely unable to work.
Marginal Employment
If a Veteran’s earnings are below the poverty level, that job cannot be considered substantially gainful. Instead, it is considered marginal employment. Marginal employment can also include employment in which the Veteran is making more than the poverty level, but is working in a sheltered environment, such as a workshop or family business. Under the regulations, if a Veteran is engaging in marginal employment, the RO cannot automatically deny a claim for IU on that basis.
Sheltered Employment
In its effort to be sympathetic toward Veterans, the government realizes that family members or friends might engage a Veteran in employment which accommodates his or her service-connected disabilities. For example, a family friend might hire a Veteran to assist with the payroll in his company, allowing the Veteran to work in a separate office, away from other coworkers, so as not to exacerbate his PTSD. As another example, the employer might allow the Veteran to take as much time off as needed when he has attacks of a migraine headache. The important thing to remember is that, in the VA’s definition of “sheltered employment,” there is no monetary cap on how much a Veteran can earn if he or she is employed in a sheltered environment. Therefore, a Veteran can be making above—even significantly beyond—the poverty level and still be eligible for IU. While this might not seem exactly fair, it must be remembered that these Veterans are being accommodated, and they would not be able to function as effectively in a competitive environment.
Oftentimes we find that the VA—and their medical experts—have a poor understanding of the concept of marginal employment when it comes to determining whether or not a Veteran can engage in substantially gainful occupation. Because this is where the ultimate question of whether or not you can go back to work comes into play. If you are working part-time to make ends meet, and your earnings are under the poverty level, the RO has no basis to deny your claim on that alone.
If you do decide to go back to work, and the RO denies your claim for IU, do not be disheartened. The regional offices often deny IU claims for even the very best of cases. Your best course of action is to appeal that decision. We have found that the Board of Veterans Appeals renders more favorable decisions in Individual Unemployability cases.
The Bottom Line on Working and VA Unemployability
So, what does all of this mean on a practical level? First, it means that VA law does allow for some Veterans who work to also receive VA unemployability benefits at the same time, depending on the circumstances. Second, it means that disabled Veterans who are working should not foreclose the thought of obtaining individual unemployability benefits based on erroneous information they may have received from others that they are not eligible for IU simply because they work.
In these cases, it is important for the earnings to be examined in order to assess if the Veteran is above or below the poverty threshold. A Veteran can produce substantive proof earnings through pay stubs, tax returns, employer letters, and/or a Social Security Earnings Record. If the earnings are above the poverty threshold, an evaluation needs to take place to determine if the Veteran is working in a “sheltered” environment. For example, if a Veteran is provided accommodations or leniencies by his or her employer on account of service-connected disabilities, such as excessive time off, the ability to leave work at will, etc., this may be a “sheltered” work situation. However, it goes without saying that the Veteran would have to have corroborating evidence to prove that the workplace is sheltered, for example, an employer letter verifying the excessive accommodations, etc.
The bottom line when it comes to IU is that Veterans and Veterans’ advocates have to know the VA’s rules on Veterans disability better than the VA does itself. The VA is not going to willingly concede that a working Veteran may be eligible for IU disability compensation.
To learn more, please review our VA Unemployability Guide.
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