In our VA practice, one question that veterans commonly ask is whether or not it is still “OK” to work, even if they are pursuing a claim for Individual Unemployability (IU). In many cases, distress of circumstances obliges a veteran to find work, while his or her case is being resolved by the VA.
The decision to go back to work is a difficult one, and certainly one that ought to be discussed with your representative, should you have one. The over-arching concern is that the VA will deny your claim for Individual Unemployability when they find out that you are working. Unfortunately, we see the VA do this time and again. However, the VA frequently adjudicates TDIU cases incorrectly, by using the wrong standard. Under the VA regulations, there are situations in which veterans can work and still be entitled to TDIU.
TDIU is not Social Security Disability
It is easy to equate the VA’s version of total disability with Social Security’s version. The important thing to remember is that IU is not structured in the same way as Social Security Disability (SSD). In many ways, the requirements to obtain IU benefits (being paid at the 100% rate) are more lenient than those of Social Security. In order to qualify for SSD, you must be found to be completely unable to work, under any conditions or circumstances. Typically, this finding is backed by the opinion of a vocational expert and/or a medical professional.
Substantially Gainful Occupation
Under VA regulations, however, the benchmark for IU claims is not whether or not the veteran is capable of working; it is whether or not the veteran can engage in substantially gainful occupation. According to the VA’s procedural manual, substantially gainful occupation refers to “an occupation that is ordinarily followed by the non-disabled with earnings common to the particular occupation in the community where the veteran resides”. In other words, substantially gainful occupation is a job that a non-disabled person can perform, with earnings above the poverty threshold. For example, “substantially gainful” might include a job as an office clerk, a bookkeeper, a flight attendant, or a sales associate. A substantially gainful occupation would require the employee to be competent, efficient, and reliable.
This is important, because “substantially gainful” is not the standard that the regional office raters use. Instead, they tend to drift toward the Social Security mindset, where the veteran has to prove that he or she is completely unable to work.
If a veteran’s earnings are below the poverty level, that job cannot be considered substantially gainful. Instead, it is considered marginal employment. Marginal employment can also include employment in which the veteran is making more than the poverty level, but is working in a sheltered environment, such as a workshop or family business. Under the regulations, if a veteran is engaging in marginal employment, the RO cannot automatically deny a claim for IU on that basis.
In its effort to be sympathetic toward veterans, the government realizes that family members or friends might engage a veteran in employment which accommodates his or her service-connected disabilities. For example, a family friend might hire a veteran to assist with the payroll in his company, allowing the veteran to work in a separate office, away from other coworkers, so as not to exacerbate his PTSD. As another example, the employer might allow the veteran to take as much time off as needed when he has attacks of a migraine headache. The important thing to remember is that, in the VA’s definition of “sheltered employment,” there is no monetary cap on how much a veteran can earn if he or she is employed in a sheltered environment. Therefore, a veteran can be making above—even significantly beyond—the poverty level and still be eligible for IU. While this might not seem exactly fair, it must be remembered that these veterans are being accommodated, and they would not be able to function as effectively in a competitive environment.
Oftentimes we find that the VA—and their medical experts—have a poor understanding of the concept of marginal employment when it comes to determining whether or not a veteran can engage in substantially gainful occupation. Because this is where the ultimate question of whether or not you can go back to work comes into play. If you are working part-time to make ends meet, and your earnings are under the poverty level, the RO has no basis to deny your claim on that alone.
If you do decide to go back to work, and the RO denies your claim for IU, do not be disheartened. The regional offices often deny IU claims for even the very best of cases. Your best course of action is to appeal that decision. We have found that the Board of Veterans Appeals renders more favorable decisions in Individual Unemployability cases.