Many of the blogs on our website have discussed the concept of Total Disability Due to Individual Unemployability (TDIU) or IU, and the criteria for obtaining these benefits. As these blogs have hopefully made clear, there are many different ways to obtain IU benefits.
One issue that frequently arises in this context is whether a veteran who is working is able to obtain IU. This may seem like an obvious “yes or no” answer. But of course when you’re dealing with most legal issues, there rarely is a clear cut “yes or no.” The best answer to this question is that it depends.
If a veteran is working and also claiming IU, the VA will look at the veteran’s earnings from the work. Specifically, the VA is looking to see if the veteran is maintaining substantially gainful employment. The VA defines “gainful employment” as any earnings from work that are above the annual poverty level as determined by the Census Bureau. This means that by definition, work below the poverty threshold is not considered to be gainful employment. In fact, the VA defines work below the poverty threshold as “marginal” employment. The VA regulation further provides that even if earnings exceed the poverty threshold, if the veteran is working in a “sheltered” environment or for a family business, he or she may still be eligible for IU benefits.
So, what does all of this mean on a practical level? First, it means that VA law does allow for some veterans who work to also receive TDIU benefits at the same time, depending on the circumstances. Second, it means that disabled veterans who are working should not foreclose the thought of obtaining IU benefits based on erroneous information they may have received from others that they are not eligible for IU simply because they work.
In these cases, it is important for the earnings to be examined in order to assess if the veteran is above or below the poverty threshold. A veteran can produce substantive proof earnings through pay stubs, tax returns, employer letters, and/or a Social Security Earnings Record. If the earnings are above the poverty threshold, an evaluation needs to take place to determine if the veteran is working in a “sheltered” environment. For example, if a veteran is provided accommodations or leniencies by his or her employer on account of service connected disabilities, such as excessive time off, the ability to leave work at will, etc., this may be a “sheltered” work situation. However, it goes without saying that the veteran would have to have corroborating evidence to prove that the workplace is sheltered, for example, an employer letter verifying the excessive accommodations, etc.
The bottom line when it comes to IU is that veterans and veterans’ advocates have to know the VA’s rules better than the VA does itself. The VA is not going to willingly concede that a working veteran may be eligible for IU.