Jump to content

Ask Your VA Claims Questions | Read Current Posts 
Read VA Disability Claims Articles
Search | View All Forums | Donate | Blogs | New Users | Rules 

  • tbirds-va-claims-struggle (1).png

  • 01-2024-stay-online-donate-banner.png

     

  • 0

Slightly Above Poverty Level.

Rate this question


SueEdel

Question

I know I have read other case where TDIU was granted when a person was employed marginally in a sheltered typed work environment.

Most responses about TDIU state that you can not work--however the following info from a case states things a little differently. I am marginally employed in a sheltered environment. TDIU was recently denied as I am a few thousand dollars over the poverty level for the past 12 months. The reason I am over is that I have a decent hourly wage--although I am working about 10 hours per week or less.

Quote from below: Marginal employment may 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.

Entitlement to TDIU, however, is predicated upon an inability to 
secure and follow "substantially gainful employment."  
38 C.F.R. § 4.16(a).  For purposes of 38 C.F.R. § 4.16(a), 
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.  Id.  Marginal 
employment may 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.  Id.  Consideration shall 
be given in all claims to the nature of the employment and the 
reasons for termination.  Id.
Link to comment
Share on other sites

  • Answers 11
  • Created
  • Last Reply

Top Posters For This Question

Top Posters For This Question

Recommended Posts

  • 0
Guest t�e�r�r�y�s�t�u�r�g�i�s

I am TDIU. I was an elected official and I kept my salary below the poverty level. I did report my income every year until I retired. Point being IMO, if you make one dollar above poverty level they will use that for the reason to deny TDIU.

Can you cut your hours to match the Government guidelines for poverty and survive until you can possibly get TDIU? Good luck. Terry

Link to comment
Share on other sites

  • 0

Denial appears to be solely based on the income. They were provided with all the family sheltered work environment info--doubtful they even read that as they found a reason to deny. I am working less hours due. They based denial on income for last 12 months. This year the income will be below the poverty level.

I had a closed end case once with SSI--just needed to file for a particular time frame and they turned me down as I made too much $. My attorney showed them how much I spent on health care (still do) and that effectively lowered my income. Had to fight for it--but it was resolved in my favor.

Link to comment
Share on other sites

  • 0

Denial appears to be solely based on the income. They were provided with all the family sheltered work environment info--doubtful they even read that as they found a reason to deny. I am working less hours due. They based denial on income for last 12 months. This year the income will be below the poverty level.

I had a closed end case once with SSI--just needed to file for a particular time frame and they turned me down as I made too much $. My attorney showed them how much I spent on health care (still do) and that effectively lowered my income. Had to fight for it--but it was resolved in my favor.

It won't work that way with VA.

Carlie passed away in November 2015 she is missed.

Link to comment
Share on other sites

  • 0

Is this a family business? Otherwise, making above poverty level income with only working 10 hours a week seems kind of high to be considered marginal employment.

Edited by free_spirit_etc
Think Outside the Box!
Link to comment
Share on other sites

  • 0

"Under 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. Consideration shall be given in all claims to the nature of the employment and the reason for termination."

So basically, they are saying that if your employment is considered marginal, it can't be considered substantial gainful. If your income is below poverty level - it SHALL be considered marginal. If your work is in a protected environment - it MAY be considered marginal.
But if your TDUI was denied based on income alone - you should be able to appeal in that they didn't take the protected nature of your employment into consideration.
Edited by free_spirit_etc
Think Outside the Box!
Link to comment
Share on other sites

Guest
This topic is now closed to further replies.


  • Tell a friend

    Love HadIt.com’s VA Disability Community Vets helping Vets since 1997? Tell a friend!
  • Recent Achievements

    • KMac1181 went up a rank
      Rookie
    • Lebro earned a badge
      First Post
    • stuart55 earned a badge
      Week One Done
    • stuart55 earned a badge
      One Month Later
    • Lebro earned a badge
      Conversation Starter
  • Our picks

    • Caluza Triangle defines what is necessary for service connection
      Caluza Triangle – Caluza vs Brown defined what is necessary for service connection. See COVA– CALUZA V. BROWN–TOTAL RECALL

      This has to be MEDICALLY Documented in your records:

      Current Diagnosis.   (No diagnosis, no Service Connection.)

      In-Service Event or Aggravation.
      Nexus (link- cause and effect- connection) or Doctor’s Statement close to: “The Veteran’s (current diagnosis) is at least as likely due to x Event in military service”
      • 0 replies
    • Do the sct codes help or hurt my disability rating 
    • VA has gotten away with (mis) interpreting their  ambigious, , vague regulations, then enforcing them willy nilly never in Veterans favor.  

      They justify all this to congress by calling themselves a "pro claimant Veteran friendly organization" who grants the benefit of the doubt to Veterans.  

      This is not true, 

      Proof:  

          About 80-90 percent of Veterans are initially denied by VA, pushing us into a massive backlog of appeals, or worse, sending impoverished Veterans "to the homeless streets" because  when they cant work, they can not keep their home.  I was one of those Veterans who they denied for a bogus reason:  "Its been too long since military service".  This is bogus because its not one of the criteria for service connection, but simply made up by VA.  And, I was a homeless Vet, albeit a short time,  mostly due to the kindness of strangers and friends. 

          Hadit would not be necessary if, indeed, VA gave Veterans the benefit of the doubt, and processed our claims efficiently and paid us promptly.  The VA is broken. 

          A huge percentage (nearly 100 percent) of Veterans who do get 100 percent, do so only after lengthy appeals.  I have answered questions for thousands of Veterans, and can only name ONE person who got their benefits correct on the first Regional Office decision.  All of the rest of us pretty much had lengthy frustrating appeals, mostly having to appeal multiple multiple times like I did. 

          I wish I know how VA gets away with lying to congress about how "VA is a claimant friendly system, where the Veteran is given the benefit of the doubt".   Then how come so many Veterans are homeless, and how come 22 Veterans take their life each day?  Va likes to blame the Veterans, not their system.   
    • Welcome to hadit!  

          There are certain rules about community care reimbursement, and I have no idea if you met them or not.  Try reading this:

      https://www.va.gov/resources/getting-emergency-care-at-non-va-facilities/

         However, (and I have no idea of knowing whether or not you would likely succeed) Im unsure of why you seem to be so adamant against getting an increase in disability compensation.  

         When I buy stuff, say at Kroger, or pay bills, I have never had anyone say, "Wait!  Is this money from disability compensation, or did you earn it working at a regular job?"  Not once.  Thus, if you did get an increase, likely you would have no trouble paying this with the increase compensation.  

          However, there are many false rumors out there that suggest if you apply for an increase, the VA will reduce your benefits instead.  

      That rumor is false but I do hear people tell Veterans that a lot.  There are strict rules VA has to reduce you and, NOT ONE of those rules have anything to do with applying for an increase.  

      Yes, the VA can reduce your benefits, but generally only when your condition has "actually improved" under ordinary conditions of life.  

          Unless you contacted the VA within 72 hours of your medical treatment, you may not be eligible for reimbursement, or at least that is how I read the link, I posted above. Here are SOME of the rules the VA must comply with in order to reduce your compensation benefits:

      https://www.law.cornell.edu/cfr/text/38/3.344

       
    • Good question.   

          Maybe I can clear it up.  

          The spouse is eligible for DIC if you die of a SC condition OR any condition if you are P and T for 10 years or more.  (my paraphrase).  

      More here:

      Source:

      https://www.va.gov/disability/dependency-indemnity-compensation/

      NOTE:   TO PROVE CAUSE OF DEATH WILL LIKELY REQUIRE AN AUTOPSY.  This means if you die of a SC condtion, your spouse would need to do an autopsy to prove cause of death to be from a SC condtiond.    If you were P and T for 10 full years, then the cause of death may not matter so much. 
×
×
  • Create New...

Important Information

Guidelines and Terms of Use