tdiu Slightly Above Poverty Level.

[SueEdel]

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.

[Philip Rogers]

I don't know what you're asking but I would file an appeal, as you should win. jmo But you will need evidence of your sheltered workshop theory.

pr

[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

[SueEdel]

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.

[carlie]

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.

[free_spirit_etc]

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 October 14, 2013 by free_spirit_etc

[free_spirit_etc]

"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 October 14, 2013 by free_spirit_etc