any advice would be appreciated

[tylerb333]

I was recently SC for PTSD as a result of military sexual trauma, 70 percent, and SC for Lumbosacral strain 20 percent.  I currently have a tinnitus and hearing loss appeal in.  I filed a NOD and asked for DRO.  Additionally I filed a secondary comp. claim for obsessive compulsive disorder and hep c, SMC for erectile dysfunction.  A week later I filed a claim asking for a raise of my service  connected rating and IU.  Voc rehab recently declared me unfeasible for its program and I submitted the unfeasible letter as proof for my IU.  Have I piled too much on too quickly?  My docs at the VA are now treating me for the Hep C.  MY PTSD symptoms are out of control, and I'll be attending Bay Pines in September.  I feel entitled to this compensation especially in light of my symptoms worsening.  Any advice on my winning my claim.m  And will I have to do a new C&P considering I just had one in march?  Whatcha think guys and gals?

[tylerb333]

Yes i am.  And thanks, I'll check it out.

[Tbird]

@tylerb333 working in a sheltered environment. @seminoles these are the rules about IU, so generally speaking no you can't work and get IU but there is an exception and it is outlined below.

I'm not sure why you so adamant about that not being true, but it is true. 

Am I automatically disqualified from consideration for IU because I have a job?

 

No. In fact, unemployability does not always mean that a veteran is not working. The key, however, is that all income earned from employment must be at or below the poverty level, or from a job that is considered to be “sheltered”. These types of marginal employment are 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.” For 2016, the poverty level for which a veteran must be working under was $11,880.

Alternatively, 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. Sheltered employment means that you are given concessions due to your service connected disabilities that would not normally be given to other employees. 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’s 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.

One thing that the VA often overlooks is the requirement that a veteran be able to maintain substantially gainful employment. For instance, a veteran may be able to hold a job for a few months, but then loses the job due to his service connected disabilities. He then may be able to get another job for a few months, before losing that one, and the cycle repeats. In such a case, the veteran is able to get jobs, but he is not maintaining employment, and is eligible for IU.

So, what does this mean on a practical level? First, it means that VA law does allow for some veterans who work to also receive IU benefits at the same time, depending on the circumstances. Second, it means that disabled veterans who are working should not automatically assume that they are not eligible for IU simply because they work.

_______________________________________-

Can a Veteran Earn an Income while Receiving VA TDIU Benefits?

To answer this question, we need only look to the law.

For those of you that don't know what TDIU is, I encourage you to read this post to get a basic understanding of the 2 types of TDIU Benefits.

To those of you trying to win your VA TDIU Claim, I encourage you to consider whether a copy of the VA TDIU Field Manual, or the VA TDIU eBook Package - will help you understand and improve your VA TDIU Claims.

38 C.F.R. §4.16(a) - the section of the Code of Federal Regulations that states the requirements for eligibility for TDIU Benefits, states the following:

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities

Now, as I've discussed before on the Veterans Law Blog, the law does not clearly define what substantially gainful occupation is.

But the law DOES define what Substantially Gainful employment IS NOT.

Read the rest of 38 C.F.R. §4.16(a):

Marginal employment shall NOT be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. (emphasis is mine).

So there you have it - the 2 ways that Veteran can earn an income while receiving VA TDIU benefits: when the employment is "marginal" and when the employment is "sheltered".

We'll look at them in more detail, below.

You might ask "Why" a Veteran is allowed to earn an income in these 2 scenarios while receiving TDIU Benefits.

Truth be told, I have no clue why Congress wrote the laws this way when they wrote them - someday I'll dig into the legislative history to understand it.

But since Congress allowed it, there is NOTHING wrong with Veterans getting Marginal or Sheltered Employment income while receiving TDIU Benefits.

Marginal Employment & TDIU Benefits.

This is the type of income that many Veterans are aware that they can receive even after being granted TDIU Benefits.

Simply go to the US Bureau of Census website, and look up the "poverty threshold for one person".  (Click here to see the historical poverty ratings tables from 1959 - 2015).

You will see that, for 2014, the poverty threshold for one person is  $12,316 per year (if you are under 65), or $11,354 (if you are over 65).  

Each year, the VA will ask you to verify your employment (or lack thereof) to determine whether you are eligible to continue to receive TDIU Benefits. They typically require that you use VA Form 21-4140 or 21-4140-1 to do this report.

The VA does cross check 2 databases that I know of:  Social Security databases that record your work/income history, and IRS databases that record your family income on your annual tax returns.  Word to the wise: if you are telling different income stories to different federal agencies, you are playing with fire, and may even be committing fraud.

If you indicate in this form that your income is higher than the poverty threshold, a proposal to reduce your TDIU benefits will be forthcoming.

It's one of the few times that the VA acts with a sense of purpose - when they want to STOP paying you.

Sheltered Employment & TDIU Benefits

Another way that Veterans can earn an income while receiving TDIU Benefits is by participating in what is called "sheltered employment".

There are many ways that your income can be considered "sheltered", but 2 that are clearly identified in the regulation itself:

1) Family business

2) Sheltered Workshop (these are supervised workplaces for adults with a physical and/or mental handicap)

Now, just because you are working for a family business doesn't mean your job is considered "sheltered employment".  It has to be what the regulation refers to as a "protected environment".

A protected environment occurs when the employer makes special accommodations to employ and provide an income for a family member or a disabled worker. This happens quite a lot  - a family business, to reduce its tax burden or simply to help another family member, pays a disabled Veteran family member an income that they would not otherwise be able to receive.

How can you tell if there is a protected work environment?

What kind of questions would you ask, and what kind of evidence would you need?

If you can get answers to these kinds of questions - typically in an affidavit by the business owner or the executive in charge of hiring/staffing - you will have a much stronger proof of entitlement to TDIU benefits even while earning an income well above the poverty threshold in a sheltered employment situation.

1) Did they employer provide any special accommodations (especially if they are not required to by the Americans With Disabilities Act) to accommodate the employee with disabilities?  These accommodations are most commonly adjustments to the work schedule, the work environment, or the work duties.

I have not handled a case yet where a major employer, covered by the Americans With Disabilities Act, provides an accommodation to a 100% disabled Veteran as required by law to do. This is an interesting question as to whether or not the employment could be considered sheltered when the company has a legal obligation to enact accommodations.  I am not aware of any VA precedent on this topic - if you do know of a precedential case on this topic, don't hesitate to let me know!

2) If the employee leaves the company, will the business hire a "similarly situated" person to fill the position (i.e, another worker with a disability)?

There are 3 scenarios here:

Scenario #1:  If the business plans to modify the Veteran's position after he or she leaves so that there are no longer accommodations to the work duties, environment or schedule, then you can make a pretty good argument that the employment is sheltered.  Why? Because it appears that the position may have been created or modified just for the disabled Veteran.

Scenario #2: If the business plans on continuing the accommodation, then its a pretty good argument that the position itself - and anyone that holds it - is sheltered employment.  (Many employers do this for the tax advantages available to certain types of "sheltered workshops").

Scenario #3: If the business plans to eliminate the position after the disabled Veteran leaves the job, then it is most likely "sheltered employment".

None of the above scenarios are absolute: the more evidence you can show that an employer created a job for a 100% disabled Veteran - whether for "feel-good" reasons, tax incentives, or any other reason other than common business reasons, the stronger your case of showing that your position is "sheltered employment".

3) Is there evidence that another business in the same industry would NOT hire a similarly situated employee, and pay them a similar income, for the same type of work?

What do I mean here?

If your family business pays you $50,000 a year, while allowing you to come in to the job  "only on the days you feel up to it", look to other businesses in the same  industry to see if they would pay that same salary to an employee that comes and goes at will.

Where do you get evidence of this sort of thing?

Honestly, you would hire an economist to prepare an expert report on the nature of the employment and whether or not it is sheltered, based on a survey of the particular industry.

This type of expert report can get really expensive, so I would not typically do this unless it was really questionable whether the employment was sheltered or not, and there was a lot riding on the outcome.

Frankly, providing evidence that answers Question #3 is probably a bit "over the top" in most Sheltered Employment claims.

Legal Advice in Sheltered Employment situations.

Be VERY careful with the Sheltered Employment rules.

They are not frequently applied, many in the VA do NOT know about them (or don't understand them when they do know about them), and the Sheltered Employment Rules can lead to serious consequences if applied incorrectly.

I'm not telling any details here, but I know of a couple Veterans who have been charged with criminal fraud for collecting TDIU benefits while getting an income and doing nominal work for a family member's business.

These charges usually will not stick - as the US Attorneys that prosecute these crimes have far less understanding of VA regulations than even most VA raters or Board Hearing Officials.

But you're going to have to pay a criminal defense attorney to make it go away, and the VA ain't repaying your attorneys fees.

That said, it is ALWAYS BEST  to get legal advice - call a VA Accredited attorney and ask for a consultation -  if you are considering earning income above the poverty threshold and want to know if it is or is not considered "sheltered employment".

[Buck52]

Some times when a  Veteran with combined IU Rating  files for other claims &get S.C. the VA Will make the IU Moot depending on the combined rating or separate ratings  and give the scheduler 100% with extra educational allowances & Possible SMC (Special Monthly Comp)

Edited June 7, 2017 by Buck52

[Gastone]

Tylerb, you meant to say "Guy, as in Porgee," right?

Everyone else has affirmed your IU eligibility while continuing to work in a Shelter Family business earning below or above the VA SGI.

The question now remains, have you filed the IU Claim yet?

Semper Fi

[porgee]

5 hours ago, Gastone said:

Tylerb, you meant to say "Guy, as in Porgee," right?

Everyone else has affirmed your IU eligibility while continuing to work in a Shelter Family business earning below or above the VA SGI.

The question now remains, have you filed the IU Claim yet?

Semper Fi

who affirmed his working while filing IU. I cant spell but if you work and get IU FRAUD. IU is for people

who can't get 100% but you are" unemployable"  you can't work for a living. VA pays you TDIU and you are working

under poverty level just don't make sence .Why would I pay you at 100% if you are still working. Why would I want 

$12,000 a year when working when if approve for IU $36,000 a year don't add up. As Tbird posted you are playing with fire

Edited June 7, 2017 by porgee

[Tbird]

@porgee when you are working in a sheltered environment you aren't doing it to pay the bills, you are doing to be doing something to feel productive to give value to your life a thousand different reasons and it is not fraud in that very specific set of circumstances. It's always good to check with a lawyer if you have a sheltered environment opportunity that you would like to try, but that is protected.

now @porgee you can disagree but you would still be wrong not because I say but because the law says so and here's the law

38CFR4.16   Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

(Authority: 38 U.S.C. 501)

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996; 79 FR 2100, Jan. 13, 2014]