Can You Work? Is Your Total (100%) Disability Schedular Or Due To Unemployability (TDIU)
So, here’s the answer…and it’s a lawyer’s FAVORITE answer… It Depends. Are you getting a 100% Schedular Rating or 100% Unemployability Rating (aka, TDIU or IUIU)?
- If you can’t work because of a disability-related to your service in the military, you may qualify for “Individual Unemployability.” This means you may be able to get disability compensation or benefits at the same level as a Veteran who has a 100% disability rating.
VA Schedule for Rating Disabilities 38CFR4
Can a Veteran Earn an Income while Receiving VA TDIU Benefits?
- For those who don’t know what TDIU is, I encourage you to read this post to get a basic understanding of the two types of TDIU Benefits.
38CFR4.16 Total disability ratings for compensation based on unemployability of the individual.
- Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,
- disabilities resulting from common etiology or a single accident,
- disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,
- multiple injuries incurred in action, or
- multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 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. Consideration shall be given in all claims to the nature of the employment and the reason for termination.
- “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“(emphasis is mine).
1. Marginal Employment and TDIU Benefits.
2. Sheltered Employment and Unemployability (aka TDIU/IU) Benefits
- Family business
- Sheltered workshops (these are supervised workplaces for adults with a physical and/or mental handicap)
How can you tell if there is a protected work environment?
- Did the employer provide any special accommodations (especially if the Americans With Disabilities Act does not require them) to accommodate the employee with disabilities? These accommodations are most commonly adjustments to the work schedule, the work environment, or the work duties. I have not handled a case yet where a major employer, covered by the Americans With Disabilities Act, provides an accommodation to a 100% disabled Veteran as required by law. This is an interesting question as to whether or not the employment could be considered sheltered when the company has a legal obligation to enact accommodations. I am not aware of any VA precedent on this topic – if you know of a precedential case on this topic, don’t hesitate to let me know!
- If the employee leaves the company, will the business hire a “similarly situated” person to fill the position (i.e., another worker with a disability)?There are three scenarios here:
- Scenario #1: If the business plans to modify the Veteran’s position after they leave so that there are no longer accommodations to the work duties, environment or schedule, then you can make a pretty good argument that the employment is sheltered. Why? Because it appears that the position may have been created or modified just for the disabled Veteran.
- Scenario #2: If the business plans on continuing the accommodation, then it’s a pretty good argument that the position itself – and anyone that holds it – is sheltered employment. (Many employers do this for the tax advantages available to certain types of “sheltered workshops”).
- Scenario #3: If the business plans to eliminate the position after the disabled Veteran leaves the job, then it is most likely “sheltered employment.”
None of the above scenarios are absolute: the more evidence you can show that an employer created a job for a 100% disabled Veteran – whether for “feel-good” reasons, tax incentives, or any other reason other than common business reasons, the stronger your case of showing that your position is “sheltered employment.”