You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons after being rated 100% disabled.
Some Veterans like to work just for the sake of having something to do.
Other Veterans like to work for non-profits or other organizations that provide a public service …. after all, Veterans as a community are more heavily oriented to public service than many other groups of people.
Yet other Veterans still like to keep doing the job that they did, as they find that the income from even a 100% VA disability rating is not enough to cover all their expense.
Whether the family’s bills, funding college educations for kids and grand-kids, medical bills for spouses and children, or paying off the mountains of debt that have likely built up in the 5-10 years you have probably been waiting for the Veterans Affairs to get off it’s arse and make the right decision….100% disability rating is barely enough money to live off.
So, here’s the answer…and it’s a lawyers FAVORITE answer….It Depends.
Whether a 100 percent Disabled Veteran can work turns on the answer to this question: Are you getting a 100% schedular rating, or 100% unemployability (aka, TDIU or IU)?
Veterans that Receive 100% Schedular Ratings have NO Limitations on Their Ability to Work.
Veterans are rated for their Veterans Affairs Disability based on a set of tables known as the VA Impairment Rating Tables. These are also known as the “Schedule of Ratings”. So, if your 100% VA Disability Rating comes because you qualify for the 100% rating specified for a single (or combination of multiple) service-connected conditions using the Schedule of Ratings, then you have NO limitations on your ability to work.
Some Veterans think that this doesn’t make sense: after all, if you are 100% disabled, that means you can’t do anything, right? This is one of the problems with the VA Disability Compensation system – for years, we have been led to believe that the percentage of rating equates to a percentage of how much our body is disabled.
In reality, the percentage of your disability rating means that you have had that percentage of interference with your ability to earn an income.
So a Veteran whose service connected condition equates to a 100% disability rating is not – in the eyes of the law – 100% disabled. Instead, in the eyes of the law, the Veteran’s ability to earn an income has been 100% interfered with.
Bottom line, if you are rated 100% using the Schedule of Ratings, or the Impairment Ratings Table – whether it is for one condition or multiple conditions – than you can work as much or as little as you want.
In theory, you could make $1,000,000 a minute and still collect a 100% Veterans Affairs Disability Schedular Rating. Of course, to make that kind of money, you’d probably have to become a Congressional representative, and put your hand into the pocket of some pretty unseemly political and lobbying organizations. But the point is the same: Veterans that Receive 100% Schedular Ratings have NO Limitations on Their Ability to Work or earn an income.
Can a Veteran Earn an Income while Receiving VA TDIU Benefits?
To answer this question, we need only look to the law.
- For those of you that don’t know what TDIU is, I encourage you to read this post to get a basic understanding of the 2 types of TDIU Benefits.
- To those of you trying to win your VA TDIU Claim, I encourage you to consider whether a copy of the VA TDIU Field Manual, or the VA TDIU eBook Package – will help you understand and improve your VA TDIU Claims.
38 C.F.R. §4.16(a) – the section of the Code of Federal Regulations that states the requirements for eligibility for TDIU Benefits, states the following:
Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.
Now, as I’ve discussed before on the Veterans Law Blog, the law does not clearly define what substantially gainful occupation is. But the law DOES define what Substantially Gainful employment IS NOT.
Read the rest of 38 C.F.R. §4.16(a):
38 C.F.R. §4.16(a) – Marginal employment shall NOT be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (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. (emphasis is mine).
So there you have it – the 2 ways that Veteran can earn an income while receiving VA TDIU benefits: when the employment is “marginal” and when the employment is “sheltered”.
We’ll look at them in more detail, below.
You might ask “Why” a Veteran is allowed to earn an income in these 2 scenarios while receiving TDIU Benefits.
Truth be told, I have no clue why Congress wrote the laws this way when they wrote them – someday I’ll dig into the legislative history to understand it.
But since Congress allowed it, there is NOTHING wrong with Veterans getting Marginal or Sheltered Employment income while receiving TDIU Benefits.
#1: Marginal Employment & TDIU Benefits.
This is the type of income that many Veterans are aware that they can receive even after being granted TDIU Benefits.
Simply go to the US Bureau of Census website, and look up the “poverty threshold for one person”. (Click here to see the historical poverty ratings tables from 1959 – 2015).
You will see that, for 2014, the poverty threshold for one person is $12,316 per year (if you are under 65), or $11,354 (if you are over 65).
Each year, the VA will ask you to verify your employment (or lack thereof) to determine whether you are eligible to continue to receive TDIU Benefits. They typically require that you use VA Form 21-4140 or 21-4140-1 to do this report.
The VA does cross check 2 databases that I know of: Social Security databases that record your work/income history, and IRS databases that record your family income on your annual tax returns. Word to the wise: if you are telling different income stories to different federal agencies, you are playing with fire, and may even be committing fraud.
If you indicate in this form that your income is higher than the poverty threshold, a proposal to reduce your TDIU benefits will be forthcoming.
It’s one of the few times that the VA acts with a sense of purpose – when they want to STOP paying you.