In Part I of TDIU – Back to the Basics, we discussed how the VA determines Individual Unemployability (IU) based on a 2-step analysis: 1) Ratings; and 2) proof of inability to work. In Part I, we looked at the VA’s rating requirements for TDIU. Now we will look at Step 2 – Proof of Inability to Work.
Step 2 – Proof of Inability to Work
Step 2 of the 2-step analysis dictates that the veteran has to prove that he is unable to secure a substantially gainful occupation due to his service-connected disabilities. This by itself is a 2-part problem. In order to fully understand the VA stipulations of Step 2, we have to look at: A) the veteran’s inability to work due to service-connected disabilities; and B) what constitutes “substantially gainful occupation”.
Let’s start with A.
When making a determination on IU, the VA can only consider disabilities that have already been service-connected. If a veteran is service-connected for his knees and his back, but in reality could not work due to his anger/PTSD outbursts (which has not been service-connected), the VA will only consider the knees and the back when deciding if the veteran can work or not. Until service-connection for PTSD is granted (if at all), the veteran should try to prove that he could not work due to his knees and back condition, as opposed to the PTSD.
Moving on to B.
The VA currently does not have a definition for “substantially gainful occupation”. The VA’s Adjudication Procedures Manual defines it as “that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides”. While this definition seems to be vague and largely unhelpful, it is worth noting that the VA has to look at:
- Marginal employment
- Educational and occupational history
Marginal employment is not considered as substantially gainful occupation. 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”. Moreover, a job in a “sheltered environment” (such as a family business, sheltered workshop, or a position tailored to the specific needs of the veteran) is considered to be marginal employment, even if that job earns an income over the current poverty threshold. Therefore, the VA cannot base their decision to grant or deny IU based on the veteran’s job that falls under the criteria for marginal employment.
For example: A veteran with PTSD works for a family friend’s business. The family friend 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 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.
The VA also has to consider the veteran’s educational and work history when determining if the veteran is entitled to IU. The VA must look at the veteran’s prior education and training, and how his current disabilities prevent him from working in the field in which he has been trained. If, on the other hand, the veteran has participated in a VA vocational rehabilitation program, and still cannot work due to the service-connected disabilities, the VA must also consider this as positive evidence that the veteran cannot maintain substantially gainful employment.
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