To be awarded Total Disability based on Individual Unemployability (TDIU) benefits, Veterans must be found unable to obtain or sustain substantially gainful employment as a result of their service-connected condition(s).
Substantially gainful employment is defined within the VA compensation manual 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. Substantially gainful employment is competitive (not protected) employment, and with earnings exceeding the amount established by the U.S. Department of Commerce, U.S. Census Bureau, as the poverty threshold for one person.” 1 Conversely, according to the VA compensation manual, marginal employment exists: “when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, U.S. Census Bureau, as the poverty threshold for one person, or, on a facts-found basis, and includes, but is not limited to, employment in a protected environment, such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. Marginal employment is by definition not substantially gainful employment.” 2
Even when a Veteran is currently or very recently employed, they can be eligible for TDIU benefits if they are found to have marginal employment, assuming they qualify in terms of the VA’s minimum rating requirements. The most common scenarios our vocational firm argues for cases of marginal employment include:
marginal earnings (below the federal poverty threshold)
protected or sheltered work environments
A Veteran can be qualified for TDIU benefits if they are working and obtaining marginal earnings. For example, many Veterans perform “odd jobs,” often as a “handyman” or landscaper to allow for flexible and seasonal schedules to accommodate their service-connected conditions. Others work intermittently in temporary positions with employment agencies. In these cases, the work is often inconsistent and occasionally even seasonal to accommodate their service-connected conditions. This inconsistent or infrequent work often renders marginal earnings below the federal poverty threshold and is therefore not considered substantially gainful employment. According to the U.S. Department of Commerce, Bureau of the Census, the poverty threshold for one person in 2019 was $13,011. If a Veteran’s income was below the federal poverty threshold for the applicable calendar year, employment can be justified as marginal. An argument for marginal earnings can demonstrate that despite a Veteran’s strong work ethic and desire to be a productive wage earner, they were unable to obtain and sustain substantially gainful employment as a result of their service-connected conditions and could be entitled to TDIU benefits if they meet applicable rating criteria. A protected or sheltered work environment is when a Veteran is held to a set of standards and expectations different than others performing the same or kindred occupations in the competitive workforce. In many of these cases, significant accommodations are made without a reduction in a Veteran’s earnings or benefits. Statements from a Veteran’s employer or supervisor explaining the circumstances of their sheltered or protected work can be beneficial evidence to include with a TDIU claim. Here are some examples of protected work environments:
Extensive accommodations provided by a benevolent employer specific to the Veteran (i.e. leave work early and at will due to panic attacks or pain; excessive tardiness due to depression or increased pain in the morning; ability to take unscheduled breaks or absences without repercussions; flexible schedules to account for flare-ups of service-connected symptoms; reduced quotas and productivity expectations as a result of physical limitations, cognitive, or psychiatric symptoms; coworker assistance with essential job duties including lifting and carrying heavy objects due to pain or covering customer contact due to anxiety; no disciplinary action for erratic/inappropriate behavior including verbal altercations and outbursts in the workplace, etc.)
Even if a Veteran has earnings above the poverty threshold, self-employment/family employment can be argued as protected work environments in some cases. If a Veteran is working for family members who are very familiar with the Veteran’s background and limitations and provide extensive leniency for the Veteran to perform seasonal work, have flexible schedules, altered essential job duties, reduced quotas and productivity expectations, this would constitute a protected work environment. Self-employment is also often “protected” in nature, as Veterans have the ability to create their own schedules, take time off and breaks as needed to accommodate their conditions, accept or decline jobs based on their current symptoms, and perform some work tasks from home, which is otherwise not generally tolerated in competitive work.
Arguments for protected or sheltered work environments demonstrate that despite a strong desire to continue working, the Veteran is unable to maintain gainful employment in a competitive capacity outside of a sheltered or protected work environment. Due to specific symptoms and limitations of service-connected condition(s), the Veteran requires extensive support and accommodations that are not customary, or generally tolerated, in the competitive workforce. If a Veteran is employed in a protected or sheltered work environment due to their service-connected conditions, they can be found to have marginal employment and qualify for TDIU benefits, assuming they meet the VA’s minimum rating requirements.
Our vocational firm has also justified a Veteran’s employment as unmaintained and inconsistent with sustained substantially gainful employment. For purposes of this argument, unmaintained work is when a Veteran was employed in one occupation for less than 12 consecutive months. For example, some Veteran’s trial several unskilled labor jobs for only a couple months in duration. They are either terminated (due to absenteeism, inappropriate behavior, or impaired productivity) as a result of their service-connected conditions, or they voluntarily resign as working markedly increased their pain or psychiatric symptoms associated with their service-connected conditions, for example. Many times, an argument for unmaintained work coincides with marginal earnings, as brief stints of employment often do not render substantially gainful earnings. In cases in which a Veteran has attempted to remain a productive wage earner but was unable to maintain a job for even 12 consecutive months, this employment can be justified as a failed work attempt as a result of their service-connected condition(s). This vocational argument can help bolster marginal employment arguments when applicable.
The VA is expected to examine each Veteran’s unique claim. Our team of vocational experts is well versed in vocationally assessing Veterans’ distinctive circumstances surrounding employment and providing expert analyses of facts surrounding TDIU. Our vocational firm has successfully supported cases for TDIU even when a Veteran is currently or very recently employed due to well-founded arguments of marginal employment. (1) U.S. Department of Veterans Affairs Compensation Manual: M21-1, Part IV, Subpart ii, Chapter 2, Section F Compensation Based on Individual Unemployability (IU) Article ID: 554400000014564; IV.ii.2.F.1.e.
(2) U.S. Department of Veterans Affairs Compensation Manual: M21-1, Part IV, Subpart ii, Chapter 2, Section F Compensation Based on Individual Unemployability (IU) Article ID: 554400000014564; IV.ii.2.F.1.f.
Andrea Goldrup, CRC, ABVE | Sr. Vocational Consultant
Massachusetts. Connecticut. New York. California | 413-437-5104 | 413-567-5871 Fax | 813 Williams St, Suite 212 | Longmeadow, MA 01106
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