tdiu How To Determine Whether Income Falls Below The Poverty Threshold

[Sergeant G]

Hi,

I had my DRO hearing a couple of days ago and I was awarded TDIU, but the DRO and I disagree about the effective date. 38 CFR 4.16 deems employment to be marginal if "annual income" falls below the poverty threshold established by the U.S. Dept. of Commerce, Census Bureau. On the Census Bureau's website, it defines "annual" as a calendar year. The VA, however, is defining annual as the last 12 months of employment. Under the Census Bureau's definition, my employment was marginal, whereas under the VA's definition, my employment was above the poverty threshold. I believe the Census Bureau's definition should be controlling since 38 CFR 4.16 refers to it to determine marginal employment. Does anyone agree or have any additional thoughts? Thanks!

[pacmanx1]

Try this wed site to see if it will help.

http://www.census.go...y/threshld.html

From 38 CFR 4.16

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.

Hope this helps

Edited June 19, 2010 by pacmanx1

[Pete53]

I may be wrong but I think the VA uses the numbers that Social Security claims which is less than Census Poverty Level.

[pacmanx1]

Pete53

Posted Today, 11:29 AM

I may be wrong but I think the VA uses the numbers that Social Security claims which is less than Census Poverty Level.

Pete53,

This is from 4.16 a of 38 CFR part 4

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.

Of course if VA uses something else, they would not be following their own regulations/guidelines.

[Pete53]

Maybe my confusion about what SSD uses caused me to misspeak on this issue but thank you for making it clear.

[PHS60]

I have a 1099 that list my GROSS INCOME at $13,000. Natuarally I have deductions that reduce my income below the Poverty threshold ($10,830.00 ). My Q is: Is the poverty threshold based on GROSS INCOME or my income after business deductions?

[john999]

Are we talking about earned income or any income? I have no earned income but some passive income from investments.