Exploring Marginal & Sheltered Employment for TDIU Benefits
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.
