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Mary Klements, Claims Advocate

Why Vocational Assessments are Important for Your Case

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If you have worked with the VA long enough, you have probably come to realize that you and the VA often do not see eye-to-eye. Certainly, this difference of opinion is highlighted no better than by one of the most contentious issues: unemployability. We see this all the time. The realities of your service-connected disabilities impacting your ability to work are lost on the VA. Fortunately, there is a way to support your Individual Unemployability case, and this is by vocational assessments.

Why the VA has trouble with IU cases

Before we go into vocational assessments, let us first examine why the VA has trouble with Individual Unemployability (IU). The structure of the VA’s rating schedule lends to this issue. The rating schedule is built around each individual disability rendering the veteran impaired in some form or fashion. Therefore, the VA is accustomed to looking at disabilities as individual puzzle pieces, rather than how the puzzle pieces fit together as a whole. Without a doubt, the rating system is built to benefit the veteran. Unlike the Social Security system, which determines whether you are completely disabled or not, the VA system enables the veteran to obtain compensation even if he/she is not completely disabled. It also provides them a way of increasing their compensation levels, which Social Security does not allow.

The problem is that, when you file a claim for IU, the VA tends to look at each individual disability, and whether or not that individual disability prevents you from working. To compound the problem, the C&P examiners, when asked to render an opinion on IU, do exactly the same thing. The end result is a very high denial rate for IU. The VA is not supposed to evaluate IU in this fashion, nor would it make any sense to do it this way; but, it still happens.

The other problem lies in the lack of expertise and experience in the vocational field on the part of those who are rendering opinions and making decisions. There is no one in the VA system—medical or adjudicatory—who is a qualified vocational rehabilitation counselor and whose sole role in the VA is to handle IU cases. Such a position does not exist. Therefore, the adjudicators rely on the C&P examiners for an opinion on whether or not the individual can work due to his or her service connected disabilities. Such individuals are not equipped with the knowledge base or experience in workplace job placement needed to make a well-rounded, practical assessment of a veteran’s ability to obtain or maintain substantially gainful employment in the current job market—which, as anyone in the workforce can attest, is fast-paced, high-stress, and often physically and mentally draining.

In many cases, the best way to combat this problem is to adopt one of Social Security’s methods: using a vocational expert. In Social Security cases, the vocational expert reviews the claimant’s file and makes a determination on whether or not the claimant can obtain or maintain employment in the current market with his/her transferable skill set.

In VA cases, we can use vocational experts in much the same way. Vocational experts are not required to testify in court before the VA, as in Social Security cases. Rather, they review the veteran’s file and evaluate the veteran’s ability to work, based on physical or mental limitations, transferable skill set, and the availability of jobs in the current market that match the veteran’s skills and need for accommodations. The vocational expert then provides a vocational assessment report, which is submitted to the VA for consideration.

What the vocational expert considers in the report

When a vocational expert is reviewing a case, the expert will look at the following:

  • Prior education;
  • Past work experience: how the past work experience translates into today’s job market, especially related to basic technical skills (such as familiarity with computers, printers, word processing programs), and ability to pick up the necessary skills efficiently;

Example: a long-time truck driver might have difficulty learning how to use Word or Excel

  • The veteran’s current service-connected disabilities and the limitations involved;

Example: a veteran with a knee and back condition might not be able to sit for extended periods, or lift a certain weight, or might  take longer to walk from one location to another

  • The effect of pain & medication on ability to concentrate, focus, attend to verbal and written instructions, complete tasks in a timely and efficient manner, here’s where the use of Afinil pills will be necessary;
  • The veteran’s ability to communicate with and respond appropriately to managers and supervisors, and get along with co-workers; or communicate appropriately with clients;
  • The veteran’s ability to adapt to stressful situations
  • Any accommodations which the disabilities might require.

The vocational expert takes all the above factors into consideration and then evaluates the veteran’s ability to function in a certain workplace environment. For purposes of vocational evaluations, the Bureau of Labor Statistics compiled a Dictionary of Occupational Titles which contains most job types. They are categorized by general educational development (GED), skill level, the strength rating, the specific vocational preparation (VSP), and the guide for occupations exploration (GOE). The expert takes the veteran’s past education and work history, and assigns a rating from each of the above categories to the jobs that the veteran has performed. At that point, the expert can assess what skills transfer from the past jobs to any future jobs. For example, if a veteran previously worked as an engineer, he might be able to transfer certain skills to a desk job. On the other hand, a veteran who worked as a mason for years would not have the skills to transfer to an office job.

Finally, the expert will evaluate the veteran’s service-connected disabilities in light of his or her transferable skills, if any. The expert may find that the veteran’s disabilities preclude the ability to work, in spite of transferable skills, however impressive they might be. The expert will provide a discussion of the findings of the evaluation, and give an opinion on whether or not the veteran is able to obtain and maintain substantially gainful employment on a regular and consistent basis.

In summary, a vocational expert’s report will typically include:

  • A review of the veteran’s medical record
  • Identification of the service-connected conditions
  • A break-down of the veteran’s past work experience
  • An evaluation of transferable skills
  • A vocational discussion

While it seems obvious to you that you cannot work due to your service-connected disabilities, the VA does not always see it that way. Obtaining a vocational expert’s report can help point out the obvious to the VA, and therefore improve your chances of being awarded individual unemployability.

Kylie Courtwright, Claims Advocate

What is Individual Unemployability?

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Individual Unemployability is often times the main goal for many veterans who are filing for disability.  Total Disability for Individual Unemployment (TDIU or simply, IU), is a disability rating granted by the VA where you receive compensation at the 100% rating level, even if your combined rating for service connected disabilities is less than 100%.  This rating is decided by the VA after considering a few different factors and determining that an individual is unable to maintain employment due to their service connected disability.

Am I Eligible for Individual Unemployability?

In order to begin receiving compensation for IU, there are certain requirements that must be met.

  • You must be a veteran
    • IU entitlement is not authorized for dependents receiving or filing a claim for DIC
  • You must have a service connected disability that you are currently receiving compensation for
  • If you only have one service connected disability, you must be rated at 60% or higher
  • If you have more than one service connected disability, your combined rating must be at least 70% with one individual disability rating of at least 40%
  • You must be found to be unable to maintain gainful employment due to your service connected disability
    • The VA will not take into account any issue that is not service connected when determining your eligibility

What is Gainful Employment?

Gainful employment is competitive employment in which your yearly earnings are greater than the national poverty threshold.  This threshold changes on a yearly basis and is dependent upon the size of your household.  If you are part of a single person or a double person household, your age is also taken into account.  For example, in 2016, for a single person household, under the age of 65, the poverty threshold was $12,486.  For a three person household, with one child under 18, the poverty level was $19,318.

So, am I not able to work at all to be able to receive IU?

With every rule, especially the VA rules, there is always some sort of exception.  Two exceptions to the strict requirements to obtain benefits based on IU are working in a sheltered environment and maintaining marginal employment.

  • Sheltered work environment
    • If you are working for a family member or another individual in which you are protected from being fired
    • If you are in a position where you are protected from certain requirements that other employees must fulfill for the same position
  • Marginal employment
    • You are working but are earning less than the national poverty threshold outlined for your household size

What if I am not Service Connected for a Disability or have a High Enough Rating?

One of the main requirements to be granted IU is that you must be service connected for the disability that is preventing you from working.  The VA, unlike Social Security, will only take into account any service connected disabilities.  With that being said, many veterans are currently in the appeals process to get their disabilities service connected or receive a higher rating.  If this is your situation, you should still submit your application for IU; VA Form 21-8940. We all know how drawn out the VA process can be for granting benefits.  Therefore, as soon as you become too disabled to work, submit your application to lock into place your effective date.  With the VA, it is all about maintaining your effective date of award, whether it is an initial claim or a claim for IU.

Say you filed a claim for service connection for a back condition in 2010 and were forced to stop working because of it, and could not obtain gainful employment.  You have gone through the appeals process and now, in 2017, you are finally being granted your service connection compensation at 80%, effective back to 2010.  If you had filed a VA 21-8940 within a year of becoming unable to work due to your back, and the VA agrees that your inability to work is due to your service connected disability, you may receive 100% compensation back to 2010, instead of only 80%!

The same is true if you are appealing for an increased rating.  Once you are at the minimum rating to be considered eligible for IU, as long as you have submitted a VA 21-8940, your effective date for IU may go back to the effective date of your increased rating award.  For some veteran’s however, they only have one service connected disability and the highest rating for the particular disability does not go to 100%. For example, migraines have a maximum rating of 50%. In situations like this, where your disability prevents you from working but you cannot reach the 70% rating level, your case should be sent to the Director of Compensation and Pension to allow them to determine your eligibility.

The VA 21-8940 can be a confusing form to fill out, so if you need any assistance, please refer to our two-part blog: Tips to Filling out the VA 21-8940 Part 1 and Part 2.

Nicholas Simpson, Attorney

IU and You:  What a Veteran Needs to Know

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Do you know what IU (also called TDIU) is?  IU is a VA acronym for Total Disability rating based on Individual Unemployability.  IU allows a veteran to receive compensation at a 100% disability rate from the VA when their service connected disabilities do not total 100%.

One way to think of IU is to think of it like “gap” insurance for your car.  If your car is totaled out when there is still a loan on it, and the totaled value of the car does not cover the loan, gap insurance will bridge the difference.  In the realm of the VA, when your disability rating does not equal 100%, but you are completely unable to maintain “substantially gainful employment” because of your disability, IU bridges the difference between your actual disability rating and 100%. You can avoid complications with One Sure Insurance, they´re the best company ever.

There are two ways in which a veteran can be granted IU:  schedular and extra-schedular.  Of these two, schedular is the more common and often times the easier to have granted.  There are two prongs for a schedular rating and two ways to meet the first prong.

The first prong is that the veteran must qualify for IU based on the VA’s rating chart.  There are two ways for a veteran to do this.  The first is that he has a single service connected disability with a rating 60% or higher.  The second way for a veteran to qualify is to have a service connected rating of 70% with at least one of the underlying disabilities rated at 40%.

Once a veteran meets the rating requirement, he must then meet the second prong for IU.  He must show that he is unable to maintain “substantially gainful employment as a result of his service connected disability or disabilities.”  It is important to remember the second part of the last sentence.  Just because a veteran has a qualifying rating and is not working does not automatically qualify him for IU.  The reason for not working must be those service connected disabilities.

Please note, unable to maintain “substantially gainful employment” does not mean the veteran is completely incapable of working.  Substantially gainful can be defined as a job that pays a wage greater than the poverty level.  A job paying less than the poverty threshold is not “substantially gainful,” and is known as “marginal employment.”  For 2016, the poverty threshold defined by the U.S. Census Bureau is $12,486 for a single person.  If a veteran’s earnings do not exceed this threshold, even while working, he is not considered to be gainfully employed.

In addition to marginal employment, a veteran may participate in “sheltered employment.”  Sheltered employment is a job in a protected or sheltered environment.  For example, a veteran is given special accommodations relating to his disability or is given lighter duty than a similarly situated individual in the same position.  A veteran working in a sheltered environment who earns more than the poverty threshold can still be eligible for IU.

Once both prongs of IU requirements have been met, what is the next step?  To receive a grant of IU, a veteran must file a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability.  This form needs to be filed with the closest Regional Office to the veteran.

When filling out the 8940, the veteran will reach Section 17.  Section 17 of the form asks the veteran to “list all employment including self-employment for the last five years.”  This section sounds like it is asking about the work the veteran has done in the last five years, starting with the time period immediately preceding the filling out of the form (i.e.  if the 8940 were filled out today, using this example, it seems that the form is asking the veteran to list his work history starting from 2012 through 2017), but it is not that simple.  The 8940 form is actually referring to the last five years the veteran last physically worked.  For example, if the veteran last worked in 1998 as a mechanic, even though the veteran is filling out the form today (in 2017), the veteran would need to list his job(s) as a mechanic from 1993 through 1998 only.

IU is often difficult to get the VA to grant.  The best evidence that a veteran can submit is an expert opinion from his treating physician stating that he cannot work based on his service connected disabilities only.  If the doctor also considers non-service connected disabilities in this determination, the VA will more than likely deny the claim.

The second way in which a veteran can obtain IU is extra-schedular.  This is a significantly more difficult route to IU.  When a veteran does not meet the schedular requirements of the first prong but is nonetheless unable to maintain substantially gainful employment due to his service connected disability, the VA should send the veteran’s claim to the director of compensation in Washington D.C. for extra-schedular consideration.  More information on the process can be found here.  In most cases, the VA is highly likely to deny these claims.

Matthew Hill

Video Blog – How do I get a 100% disability rating?

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Matthew Hill: Hello and welcome to the Hill and Ponton Veterans Video Blog. I’m Matthew Hill.
Carol Ponton: I’m Carol Ponton.
Matthew Hill: Today we want to talk about a question we get all the time and that is, how do I get 100% rating? We see vets who are frustrated. Either they have a single disability they’re trying to get up to 100%, or they have multiple disabilities that are combining together. The thing about the VA rating system is that it’s counterintuitive, let’s say. It’s not one plus one equals two. It’s 10% plus 10% equals 19%. The closer you get to 100%, your ratings combined, the harder it is to get 100%. We have a veteran who came to us and had a 90% rating and then a 40% rating on top that. Well, the way the VA math works, that actually only equals 94%. The 4% goes away and the veteran-
Carol Ponton: Rounds down to 90.
Matthew Hill: Rounds down to 90. It is a really hard, but we have some thoughts on what you could do.
Carol Ponton: Well, first of all, a lot of times veterans will have … Say they have a back problem, and they’re getting compensation for the back but not the radiculopathy, or they could have …
Matthew Hill: Radiculopathy is pain, loss of sensation, loss of muscle tissue.
Carol Ponton: Down either leg or both legs. Veterans don’t realize you can get ratings, very high ratings for each leg, and that will bring you up. The other thing … what if there’s incontinence? What if there’s erectile dysfunction? There are a lot of things that can go with just the one problem that they have including depression. A lot of times people are very depressed because the back limits him so much in ability to work or to do other things. That’s the first thing. Have you filed everything you should file in connection with your claims? These are for people on both sides, but if you’re working that’s your option. That’s what you have to do. If you’re not working, make sure you file the unemployability because once you file that, they have to consider whether the disabilities that you have keep you from working, and if they do, they’ll grant you 100% under unemployability.
Matthew Hill: Yeah. Going back to the back. You see this a lot with some of the bigger disabilities. Back, diabetes, I think heart, TBI in particular, but it will be … The main disability, they’ll have a rating for it. Parkinson’s is a huge one. Then, there’s all the problems that it causes and those can be higher ratings. You know, with the back, a pretty common rating, unfortunately, is 20%. A veteran with a 20% rating to me has a very severe back problem. It’s almost easier to get a 20% rating and another 20% rating for both legs for the radiculopathy than it is to get a rating on the back itself. As Carol said, you want to put everything out there that it might be causing so that you can get ratings for individual pieces and hopefully get you up to 100%. If you get stuck, say you have that back or it’s 20% and the two 20%s for the legs, don’t quote me on this but I think that’s 60%.
Carol Ponton: Right, because it’s one common etiology.
Matthew Hill: Yeah, so that would give you eligibility right there for unemployability. That’s a way to get out of this rat trap if you will of they put ratings together because you’re fighting tooth and nail for another 10% here, 20% there, and your rating doesn’t even go up. Again, that would be something. If your disability, service-connected disability, is preventing you from working, then that’s something to apply for there. As far as your ratings combining together, I’d invite you to look at our VA rating calculator essentially. It puts all the ratings together for you and let’s you know what your ratings combine to and what you might need as far as a further rating to get the higher rating you want.
Carol Ponton: Remember, this is complicated. The VA, first of all they’re … If you have a 40% disability, they consider that only 60% of your body’s left, so the next time you get a rating, the rating is 20% times 60%, not 100%. You’re left with 12 rounded down 10. Then, there’s another concept called … Say that both legs are impaired and they’re rated, then they give you a little extra for that. That’s why it’s really hard to do it without this table, this calculator that we have it. It will tell you where you are. Another thing I want to talk about, Matt, when you have … Say the person is still working. If they get Parkinson’s, a lot of times they’ll just give them 30%.
Matthew Hill: Right.
Carol Ponton: That’s for Parkinson’s, but they’re not considering weakness in your legs, difficulty walking-
Matthew Hill: Difficulty talking.
Carol Ponton: Difficulty talking, thinking, remembering. You want to make sure all of these individual problems are broken down and rated separately because that will give you a much higher rating. You don’t want to take just the 30% rating for Parkinson’s when you have all these other problems, and that goes with diabetes. Diabetes, you may get 40% if you’re on insulin and you have to regulate your activities, but you can get so much more from the peripheral neuropathy that may be in your hands, your legs, your feet. You need to make sure all of these things have been evaluated.
Matthew Hill: Well, thank you so much for that question. We ask you to send us more. This Matthew Hill with Carol Ponton on our Hill and Ponton Veterans Video Blog. Thanks so much.
Matthew Hill

Video Blog – Individual Unemployability – When to File

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Matthew Hill: Hello and welcome to another Hill and Ponton video blog. I’m Matthew Hill.
Carol Ponton: I’m Carol Ponton.
Matthew Hill: Today we want to talk to you about individual unemployability and a big mistake we see, and that is the timing of the filing of the paperwork for that. A lot of times what we’ll see is somebody is not working and they’re filing for service connected compensation for their back or their headaches or their allergies, and they’re not service connected yet.
Carol Ponton: Right.
Matthew Hill: It’s those disabilities that are keeping them from working.
Carol Ponton: Right.
Matthew Hill: Even though they’re not service connected, once they get service connected they’re really going for 100%. What do you see mistake-wise on this?
Carol Ponton: Well, unfortunately, what happens is if you haven’t … First of all, it takes forever to get your claims evaluated and approved through the VA. Then if you wait until then to file a claim for unemployability, you have to start all over. Plus, the VA seems to think that you only became disabled the day you filed that form. You have a catch 22. You have to wait years more and then they will only go back to when you filed the form, and that’s not the law. We appeal all that, but that’s what you’re going to get from the VA. I feel whenever a veteran has what they think should be a service connected claim that keeps them from working, they should also file for unemployability.
Matthew Hill: One of the catches here is that they’ll get flack from veteran service officers or people at the VA saying, “Well, you’re not even service connected. You can’t file this yet.” The whole point is you don’t want just to be service connected, you want to be compensated at the correct rate. This is part of that. You want to get all your paperwork in there, because unfortunately if you don’t and you get fighting, that’s where people need us. They come in and we see all this paperwork is all over the place, and they need us to come in and basically force the VA to recognize the law that even though the form for unemployability wasn’t filed till three years, four years after the actual claim, it should go all the way back.
This is big money.
Carol Ponton: This is big money.
Matthew Hill: I mean, we’re talking tens of thousands of dollars that they want you to leave on the table by not appealing. Our hope is that if you do it all at once, that goes away, that they finally service connect you and they say, “Oh, wow. This is 100% rating.”
Carol Ponton: It’s really sad when I have a veteran who has been fighting for five or six years to get service connection. Now they get the service connection where they’re back in the radiculopathy and I hear from the decision review officer, but I can’t consider unemployability because the veteran didn’t file a claim, or he just filed it when he came to you and it’s still at the initial phase, it’s not an appeal.
Matthew Hill: Right. This is, unfortunately, one of those tricks, I’d call, to make there be a longer delay, or as I was saying earlier, tricks for the veteran not to grab all the retroactive compensation they’re entitled to. Again, you will hear people tell you that you can’t do this or you’re just clogging up the system if you file the unemployability form, and that’s the 218940 is the name of the form, if you file that form they’ll say, “Well, you’re not even service connected yet. What are you doing?” If you are filing for the disabilities that are keeping you from working, that should be your end goal.
Carol Ponton: That’s your answer. “My back keeps me from working and this form needs to be filed so that I can prove my case.”
Matthew Hill: Thank you for joining us today on the Hill and Ponton Veteran’s video blog. We look forward to seeing you on this space again soon.
Heather Staskiel, Attorney

Temporary 100 Percent VA Disability Ratings

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Many veterans have the goal of being awarded 100 percent disability rating due to the severity of their disabilities. Sometimes, a veteran may be incapacitated by his or her disability to a level that warrants a 100 percent disability rating, but, fortunately, may be able to recover enough to where the 100 percent rating no longer accurately reflects his or her current level of disability. In such case, the VA will award temporary 100 percent disability for the time period in which the veteran was totally incapacitated. There are three types of temporary 100 percent disability ratings that a veteran may be eligible for: pre-stabilization ratings; Convalescent ratings; and hospitalization ratings. We will discuss each of these in turn.

A 100 percent pre-stabilization rating may be assigned to a veteran who suffers from an unstabilized condition that was incurred in service if the unstabilized condition results in a severe disability that makes substantially gainful employment unfeasible (note: a 50 percent pre-stabilization rating may be assigned under certain circumstances as well). An example of an unstabilized condition would be residuals from a car accident or gunshot wound. The VA cannot assign a temporary 100 percent pre-stabilization rating where the veteran is immediately eligible for a 100 percent schedular rating or a 100 percent rating due to total disability based on individual unemployability (TDIU). Pre-stabilization ratings are in effect for the 1-year period immediately after discharge, and the VA is not able to change a pre-stabilization rating if it would reduce benefits to the veteran during the 1-year period. However, the VA is able to change the veteran’s pre-stabilization rating to a 100 percent schedular rating or 100 percent TDIU rating if so warranted. It’s important to remember that the VA must conduct a C&P examination for the veteran’s un-stabilized condition between 6 and 12 months after the veteran is discharged, but even if the examination shows that the veteran’s disability warrants a lower rating, a reduction cannot occur until the end of the 1-year period.

A veteran may also be entitled to a temporary 100 percent rating for periods of hospitalization for treatment or observation which are greater than 21 days. Note, the hospital treatment or observation must be related to the veteran’s service-connected disability, but if the veteran is initially admitted to the hospital due to a non-service-connected disability and receives treatment for his or her service-connected disability for more than 21 days during the hospital stay, he or she is still eligible for a temporary 100 percent rating for the period he or she was receiving treatment for the service-connected disability. This temporary 100 percent rating is effective from the first day of continuous hospitalization and ends the last day of the month of discharge from the hospital.

The third type of temporary 100 percent rating is available where a medical report establishes that a veteran needs time to convalesce following hospital discharge or outpatient release. In VA law, the term “convalesce” means “the act of regaining or returning to a normal or healthy state after a surgical operation, or an injury.” There are three circumstances under which a 100 percent convalescent rating will be issued: the veteran has undergone surgery that requires at least 1-month convalescence; the veteran has undergone surgery that has resulted in severe postoperative residuals, or one of the veteran’s major joints immobilized by a cast. Such benefits are effective from the date of hospital admission or outpatient treatment and may continue for a period of 1 to 3 months from the first day of the month following hospital discharge or outpatient release. Veterans are able to obtain extensions of convalescing ratings for up to 3 months, or 6 months in certain circumstances, if postoperative residuals are particularly severe. It is important to remember that medical evidence is necessary to establish entitlement to a convalescent rating, specifically a note from the veteran’s doctor stating how long he or she requires to recover.

Cassandra Crosby, Claims Advocate

Eligibility for Unemployability While Still Working

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In our blog about working and receiving Unemployability, we outline how Veterans can continue to be employed while receiving the VA benefit called Total Disability due to Individual Disability (TDIU). We outline how to file for this claim in several blogs including, Tips for Filling out the VA 21-8940; as well as provide Veterans with a guide to what TDIU is and how to determine if one is eligible for Unemployability in our Unemployability Guide.  One of the main things to know for Veterans who continue to work while filing for Unemployability is the rules concerning what is called “marginal employment.” There are different kind of work of this kind they can do, they can work for Partners for Home helping people, or find another function.

Marginal Employment

Marginal Employment is considered as “earned annual income that does not exceed the poverty threshold for one person as established by the US Department of Commerce, Bureau of the Census.” This means employment that pays at the level of, or below the standard poverty threshold based on the year you are applying as your effective date. For example, if a Veteran is applying for TDIU back to 2014, the Veteran would need to have made less than the poverty level in income for that year and the years after that that the Veteran continued to work. This is based on no dependents, whether the Veteran has any or not. If a Veteran exceeds the poverty threshold, he or she would not be eligible for VA benefits.

Sheltered Employment

Sheltered Employment is the other type of marginal employment eligible for TDIU. Sheltered employment means that a Veteran is given concessions due to his or her service-connected disabilities that would not normally be given to other employees. This is something beyond what would be legally provided through ADAAA accommodations. For example, a veteran with TBI works for a company that specifically hires Veterans with disabilities. The company provides the veteran with an office and duties that afford limited interaction with other people. The veteran’s salary pays his bills, and is over the current poverty threshold. Because the veteran’s job has been tailored to his individual needs (limited interaction with other people), his job is considered to be sheltered, and therefore falls under “marginal employment.” The VA cannot consider this job as being substantially gainful employment, and must not use it against him in determining IU.

Proving Sheltered Employment

Proving sheltered employment can often be difficult. Veterans must show that not only that their disabilities keeping them from working in sustainable employment, they must also show that the employment they do hold is sheltered by providing evidence in the form of documentation from their employer stating what accommodations have been made for the Veteran and verifying that these accommodations would not be made for other employees. As long as the accommodations are not considered “reasonable” and do not violate the ADAAA, they are not required to be provided to all employees. For example, providing someone with an ergonomic chair for a back injury would be an ADAAA accommodation and something reasonable to provide to all employees who had a back injury. A small business conducted a fundraiser to raise money to build a special entryway into their office for a Veteran in a wheelchair so he could have his old job back when he returned from service. This would not be considered a “reasonable accommodation” per the ADAAA as they normally could not afford to provide such types of accommodations, so therefore this would be considered sheltered employment.

Differences between Sheltered Employment and Reasonable Accommodations

Reasonable accommodations per the Americans with Disabilities Act Amended Act provides for accommodations that meet specific criteria per federal law. These criteria are:

  1. Dignity: Persons must be accommodated in a way that most respects their dignity, including their privacy, confidentiality, comfort and autonomy.
  2. Individualization: There is no set formula for accommodation. Each person’s needs are unique and must be considered afresh when an accommodation request is made. A solution may meet one person’s requirements but not another’s, although many accommodations will benefit many other people with similar needs.
  3. Inclusion: Achieving integration and full participation requires barrier-free and inclusive design and removing existing barriers. Preventing and removing barriers means all persons should have access to their environment and face the same duties and requirements with dignity and without impediment.

Sheltered employment does not have to meet these requirements. There are three ways to determine if employment is considered sheltered:

  1. If the Veteran were to leave the position, the accommodations would no longer be available to any other employee, in other words, they were specific to just the Veteran;
  2. The business plans to continue to accommodate the position and hire someone else similarly disabled;
  3. The business plans to eliminate the position completely if the Veteran was no longer working at the business.

Family owned businesses, businesses that specifically hire disabled veterans, non-profits who work with disabled veterans in “sheltered workshops” are usually where you are most likely to find marginal employment situations. Legal representatives or a vocational rehabilitation counselor can advise on whether employment can be considered sheltered. However, remember, falsely reporting employment income or accommodations as sheltered is a federal offense and can lead to criminal charges, so if a Veteran is filing for TDIU and is employed, make sure they are getting good counsel.

Robin Rosenblad, Claims Advocate

Can I combine ratings for TDIU?

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To even be considered for Total Disability based on Individual Unemployability (TDIU or IU) with the VA, you must have at least the following ratings for service-connected conditions:

  • You must have at least one service-connected disability rated at least at 60%, OR
  • Two or more service-connected disabilities with a combined rating of at least 70 % with at least one of those rated at 40 % or more.

(There are some other exceptional circumstances that might qualify you for TDIU but those are not the subject of this discussion.  See also our prior video on this subject.)

In order to meet the 60% or the 40%/70% percentage requirements, be aware that for certain disability conditions you can combine ratings to meet the “one disability” requirement if they fall under certain situations.  According to the law, CFR §4.16, the following would be considered one disability:

(1)       Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,

(2)       Disabilities resulting from common etiology or a single accident,

(3)       Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,

(4)       Multiple injuries incurred in action, or

(5)       Multiple disabilities incurred as a prisoner of war.

Here are some examples that could satisfy the requirements of items (2) and (3) above:

  • Service connection for Diabetes with secondary conditions such as peripheral artery disease, diseases of the eye, kidney damage, cardiovascular disease, and foot damage. These all have a “common etiology” of Diabetes and so could be combined to fulfill number 2 above.
  • Another “common etiology” example would be Parkinson’s Disease with secondary conditions such as sleep disorders, cognitive difficulties, bladder problems, constipation and depression resulting from the Parkinson’s Disease.
  • Orthopedic conditions such as low back pain, cervical spine pain, and hip pain could all be combined to fulfill the requirement of number 3 above as they all affect a single body system.
  • Service-connected injuries received in a military accident (e.g., a motor vehicle accident) including traumatic brain injury, a fractured leg, and a cervical spine condition could be combined to fulfill the requirements of item 2 above if they all resulted from that single accident.

These are just a few examples of using combined ratings to meet either the 60% single disability requirement or the 40% single disability (with a total of 70%) requirement for a veteran to be eligible for TDIU.  Once you meet that requirement, there are other conditions that must be met in order to be granted TDIU such as being unable to maintain “substantially gainful” employment.  (You might also qualify for TDIU if you are still working but your income must be below a certain level or your job must be in a protected environment.)  Also keep in mind that TDIU is not restricted to certain age groups.  If you are 85 years old and meet the eligibility requirements of TDIU, you could still qualify for and be granted TDIU.

Kirsten Hirt, Claims Advocate

Exploring Marginal & Sheltered Employment for TDIU Benefits

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The means the VA utilizes to calculate your overall disability rating can make it difficult to reach 100%.  This is because they do not simply add each percentage together and often the closer your total gets to 100%, the harder it is to bump up your overall rating.  The good news is 100% can be achieved by other means.  Individual Unemployability can be filed as an additional claim if your service-connected disabilities keep you from securing and maintaining substantially gainful employment.

In order for TDIU (total disability based on individual unemployability) benefits to be awarded, you must first qualify based on your rating.  TDIU can be awarded once you have a single disability at 60% or if you have a total of 70% or higher with at least one disability rated at 40%.  Additionally, due to the nature of the benefit, most people are also unemployed when TDIU is awarded.  However, there are special circumstances that may still qualify you for TDIU while employed.  This is because VA Unemployability does not always equate to not working.

To understand whether you qualify, especially if you are working, it is important to be familiar with the definitions used by the VA when discussing individual Unemployability.  Substantially gainful employment is defined by the amount of earnings from an employed position.  The total amount of earnings from your job is considered gainful if they are above the poverty level.  It is also defined as competitive employment where a non-disabled individual may earn a comparable income to the particular occupation in the same area.  To determine if your earnings may be deemed gainful, the VA refers to the U.S. Department of Commerce which establishes the poverty level amount.   If you are employed and the earned annual income doesn’t exceed the poverty level, it may be considered marginal employment.  If that is the case, you can receive TDIU in some circumstances – assuming you qualify in terms of the minimum rating required for unemployability benefits.

You may also hear or see the term sheltered employment mentioned.  Sheltered employment involves holding a job but in a protected environment.  It involves maintaining a position where accommodations are made for your disabilities.  In other words, you would not be able to work at any job but rather are able to keep working because you have been given a flexible schedule or reduced duties because of your disabilities.  This may include diminished quotes, excessive time off, leave work at will, etc.

Sheltered employment essentially is a job where you are not working under regular expectations.  It may be a job where you are expected to do the most you can and whenever you are able.  Generally, with a sheltered employment position, you are held to a different set of standards due to any limitations you may have resulting from your service connected disabilities.  It also may have been developed specifically for you to allow you to keep working.  For example, you may have permission to go home due to a migraine or are allowed to work individually if you have severe anxiety.

There are many different circumstances that can be defined as sheltered employment but you must be able to submit supporting evidence if you are claiming unemployability. For sheltered employment, it is extremely important to try and obtain a statement from your employer.  Ask them to verify any accommodations made demonstrating to the VA that your current position is in a sheltered environment.  Similarly, the VA will require documentation of marginal employment if it is shown you are working but requesting TDIU benefits.  It can be very difficult to obtain TDIU benefits under these exceptions, so just remember to have all the documentation ready if you are working and your position falls into one of the above categories.  As a reminder, you will still have to file the VA Form 21-8940.  You can find a full TDIU guide with instructions on how to complete the required form here.

Matthew Hill

Video Blog – Common Mistakes – 100% vs Unemployability

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Matthew Hill: Hello I’m Matthew Hill from Hill and Ponton. This is our VA video blog. I’m here with Carol Ponton, and we’re doing a series on the big mistakes we see, or the misunderstandings that get in the way between a veteran and his benefits. Today we want to talk to you about unemployability versus 100%.
  The overwhelming number of clients we represent are so disabled that they can’t work, and we are trying to get them total benefits, be it 100% or unemployability. We are asked all the time …
Carol Ponton: What’s the difference? There’s a schedular 100%, that means you add up all of the ratings you have and they reach 100% …
Matthew Hill: Well, you don’t add them.
Carol Ponton: You combine them.
Matthew Hill: The VA does this percentage math, right.
Carol Ponton: Or you have 100% because you’re not working and you’re not working because of a service connected problem. They’re essentially the exact same thing except under unemployability, you can’t work. That’s the only difference, and you just have to, every year, say I’m not working, and the 100% continues.
Matthew Hill: Well you can work, and we have more information on this on our blog. Check it out. You can work only a little bit, but you are able to work.
Carol Ponton: Right. Basically, they are the same things, but our veterans are very confused about that. They are not sure why is one better than the other. If you want to work and be 100% disabled, then yes, you don’t want the unemployability. If you’re not working because of the service-connected problem, it makes no difference whatsoever if you’re getting unemployability or 100%.
Matthew Hill: Right.
Carol Ponton: That’s the confusion that we have with the clients.
Matthew Hill: If they are permanent and total, they get all the same other benefits: tax breaks …
Carol Ponton: That’s permanent and total. That’s not unemployability and 100%.
Matthew Hill: Right, but it applies to both.
Carol Ponton: Right.
Matthew Hill: You don’t have to be 100% schedular to get that.
Carol Ponton: Right.
Matthew Hill: As far as back to what we were saying as what schedular is and how you combine ratings, we have a VA disability calculator now that actually takes your ratings and combines them just to help. Because a lot of times, we’ll see veterans with ratings that add up to 210%, but they are getting paid 80% or …
Carol Ponton: Not.
Matthew Hill: We’ll link to that in these notes. It’s just important to know to have all options on board.
Carol Ponton: Exactly.
Matthew Hill: If you’re eligible, or you think you’re eligible for 100%, but you might be eligible for IU, we’ll put them out there.
Carol Ponton: IU is unemployability.
Matthew Hill: Unemployability. Don’t take them out just because you don’t think it’s going to be as good getting one benefit or the other because you’re basically tying one hand behind your back.
Carol Ponton: Right.
Matthew Hill: Well, thank you for tuning in on our Hill and Ponton VA blog. We are, again, talking about big mistakes we see that interfere with veterans getting the benefits they deserve.