When you are entitled to compensation benefits for a service connected disability, the VA rates it to determine the amount of money you should receive, using the Schedule for Rating Disabilities. The ratings range from 0% to 100% and increase in increments of ten. The rating is based on how your disability impairs your occupational earning potential. The highest level of disability is 100%, which means the veteran is totally disabled. But there are cases where a veteran is unable to secure substantially gainful employment, but they do not meet the schedular rating percentage of complete disability, meaning their disability is not rated at 100%. That is when Total Disability based on Individual Unemployability (TDIU or IU) comes in.
TDIU is meant to consider the effect that service-connected disabilities have on a veteran’s ability to work. The VA uses TDIU to acknowledge that a veteran’s disability may not be at a 100% rating, but there are other factors that warrant assigning a 100% rating. This means that the VA is supposed to take an individualistic approach when it comes to TDIU, as opposed to the rating schedule. The rating schedule is designed to look at whether the average person would be capable of working under certain circumstances. TDIU looks at whether the individual veteran is capable of working under his particular circumstances. The determination of a veteran’s entitlement to TDIU is considered in the context of the individual veteran’s capabilities, regardless of what the average person would be capable of or if they would be rendered unemployable under the same circumstances.
The VA has to determine entitlement to TDIU on a case-by-case basis. The following factors are taken into account:
- Frequency and duration of periods of incapacity
- Time lost from work due to disability
- Veteran’s employment history
- Veteran’s current employment status
- Veteran’s annual income from employment, if any
The important thing for the veteran to prove is that they are unable to secure “substantially gainful employment”. That is the keyword here. Although not officially defined by VA regulations, substantially gainful employment is employment at which nondisabled individuals earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. So if a veteran is working and making as much as the average person in that location would be making for doing the same job, that would be considered substantially gainful employment and they would likely not qualify for IU.
There are instances, however, where the veteran may be working and still qualify for IU. An example of this is marginal employment. Marginal employment is defined 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. You can find this year’s statistics for poverty threshold here. If a veteran is working, and they are single and under the age of 65, and their annual income is less than $12,331, that would be considered marginal employment. Another example where a veteran may be working but still qualify for TDIU is “sheltered employment.” Sheltered employment is when a veteran holds a job in a protected environment, such as a family business, where they are able to accommodate their disabilities, with either a flexible work schedule, or reduced quotas, for example. This could still qualify as marginal employment even if the veteran earns more than the poverty threshold.
If you have a job under one of these conditions, marginal or sheltered employment, you are not automatically disqualified from TDIU, but you will want to be careful because the VA will closely evaluate your employment. They will look to see if your work is proof that you have the capacity and ability to engage in a job that would produce an income above the poverty threshold, and thus constitute substantially gainful employment.
A few factors the VA may consider are:
- The number of hours per week you work
- If your claim is for a physical disability, they will consider whether you are able to perform the exertional activities required by the job, such as sitting, standing, or walking, to determine if you have the ability to engage and maintain substantially gainful employment.
- If your claim is a mental disability, they may consider skills such as communicating, remembering, following instructions, or dealing with people (supervisors, co-workers and the public) to determine whether you are able to engage in substantially gainful employment.
If you are working part-time, you may want to consider and point out to the VA that you would not be able to perform the same work with the regularity or for the duration that would normally be required for substantially gainful employment.
For more information on these issues, click here. Keep an eye out for the next blog that will discuss the process of qualifying for IU.
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