Veterans receiving total disability based on individual unemployability (TDIU) benefits have severe service-related medical conditions preventing them from holding a job without special accommodations. Despite this, veterans can still receive additional income from what the VA calls marginal work environments.
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In this article about marginal employment:
Can you work with TDIU?
Veterans receiving TDIU benefits have service-related medical conditions preventing them from maintaining substantially gainful employment. However, there are certain situations in which veterans can earn income while receiving these benefits.
Zack Evans, a VA disability lawyer, explained that veterans earning additional income often do so by periodically pursuing odd jobs.
“The stressful, demanding nature of full-time employment is precisely why both physically and psychologically disabled veterans cannot obtain substantially gainful employment and need the benefits of TDIU,” he said.
Veterans receiving TDIU benefits can continue working odd jobs or in other marginal employment situations, which is explained in the next section.
VA definition of substantially gainful employment
The VA defines substantially gainful employment as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides. It suggests a living wage.”
In other words, employment might be substantially gainful if the job pays a competitive wage above the poverty threshold as set by the U.S. Census Bureau. The poverty threshold for a single person under the age of 65 in 2021 was $14,097. However, just because a job pays above a poverty level wage does not always mean it is substantially gainful.
Another element to consider is whether a veteran with disabilities is able to perform the same job requirements in a way that a person without disabilities could. If the employer is making special accommodations because of a veterans’ medical needs, the job would be considered sheltered or protected employment, which is not substantially gainful employment.
What does the VA consider marginal employment?
When a working veteran’s income is below the federal poverty line or when the veteran can only work less than half the usual hours of the job, then it would be considered marginal employment.
VA reviewers may compare the veteran’s present situation to the person’s prior work experience and income to determine whether the current job would be considered marginal employment.
They will also consider the job itself, the opportunity for local employment in the field, the job requirements compared to the veteran’s disabilities, and the veteran’s current wage compared to similar jobs.
What does the VA consider sheltered employment?
Sheltered (or protected) employment is also a type of marginal employment. If an employer makes modifications to a role to help a veteran with disabilities meet the expectations of their job, this is considered sheltered employment. These adjustments to a position may include accommodations for medical needs, tolerance for lower productivity, or other flexibilities that employers would not give to employees without disabilities.
“If a veteran employee is allowed to leave early or take unscheduled breaks due to chronic headaches or panic attacks flowing from their service-connected post-traumatic stress disorder, that’s considered an accommodation that could allow us to characterize the employment as protected or sheltered,” attorney Zack Evans said.
Altered work requirements for veterans with disabilities would also be considered sheltered employment. For example, if a position requires occasionally lifting and carrying items across the workplace, an employer may decide the veteran employee with service-connected back pain does not need to complete those tasks. That would be considered an accommodation based on veteran status.
Evans explained that leniency for conduct is another example of sheltered employment. He offered the example of veterans with service-connected mental health disorders.
“Sometimes veterans can decompensate in the workplace and lash out unknowingly, unwittingly, or experience a momentary lapse of reason or judgment,” he said. “Some employers may look past these transgressions because they understand the veteran’s military experiences. For example, they could tell the veteran, ‘come back, we’ll see you tomorrow,’ allowing the veteran to take the rest of the afternoon off and return the next day. That’s another great example of a protected or a sheltered work environment.”
If a veteran is employed in a sheltered work environment, they may still be considered for TDIU benefits, even if the job’s income is above the poverty line.
How your job can hurt your TDIU claim
Many veterans who should qualify for TDIU benefits end up working part-time to get by while waiting for a decision from the VA. Unfortunately, the VA will sometimes use this situation to classify the veteran as being able to hold substantially gainful employment.
“Many veterans simply cannot afford to go without an income while waiting for the VA to do the right thing,” Evans said.
Veterans should clearly explain why their service-connected conditions prevent them from substantially gainful employment and explain how their current employment does not qualify as substantially gainful.
How your job can help your TDIU claim
Collecting statements from employers and coworkers is key to making a strong case for TDIU benefits while a veteran is working in a protected environment.
Evans recommended that veterans sit down with their closest coworkers and supervisors.
“You want people that really know your situation as a veteran,” Evans said. “Maybe they don’t have a complete understanding of your full backstory, but they know what you’re dealing with and can provide some insight to your attorney and the VA as to why you would not be able to sustain employment in an unsheltered or protected environment.”
“They brought me from being stuck at 30%. Denial after denial. Finally rated at 70%. Appealed for total and unable to work disability since 2014. Without Woods and Woods, I would still be stuck at 30%.”
F.H.
How can Woods and Woods help?
The team of VA-accredited disability lawyers at Woods and Woods has been helping people with disabilities get the benefits they deserve since 1985. We never charge for help with an initial application and have an experienced team ready to help you get started or file an appeal for a denied claim.
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FREQUENTLY ASKED QUESTIONS
You can ask your closest coworkers and supervisors to submit statements explaining why you would not be able to sustain employment in an unsheltered or protected environment.
When a working veteran’s income is below the federal poverty line or the veteran can only work less than half the usual hours of the job, then their employment is considered marginal employment.
The VA defines substantially gainful employment as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides. It suggests a living wage.”
Neil Woods
VA disability attorney
Woods & Woods
Neil Woods is the firm’s owner and president. He received his law degree from Western Michigan University.
