Unemployability and working in a sheltered environment such as a family business

[Tbird]

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.

https://www.hillandponton.com/unemployability-iu-guide/

Marginal employment shall not be considered substantially 
gainful employment.  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.  

Significantly, however, marginal employment may also be held 
to exist, on a facts found basis, based on employment in a 
protected environment such as a family business or sheltered 
workshop even when earned income exceeds the poverty 
threshold.  Consideration shall be given to all claims as to 
the nature of the employment and the reason for the 
termination.  38 C.F.R. § 4.16(a).

[SueEdel]

Favorable decision earlier this month. They corrected their errors. At issue for most of us is the length of time it takes. If this had been properly processed they wouldn't need to pay employees to re-do the claim. 

Edited June 13, 2017 by SueEdel
Correction

[lmholmes11]

Has anyone ever successfully used the sheltered employment when your already on IU? How do you apply? I am currently rated 80% scedular, however i am on IU. I have a very close family friend that wants to make up a position for me at his business (sheltered) i can set my own schedule and he will work around my limitations. I have never entertained it because I fear loosing my IU. Another route I was contemplating on trying is getting my 80 bumped up to 100 schedular

[GeekySquid]

2 hours ago, lmholmes11 said:

Has anyone ever successfully used the sheltered employment when your already on IU?

Trying to understand your current situation fully.

You are currently receiving IU. Getting paid at the 100% rate ?

You currently don't earn a taxable income from any other source?

or

You currently earn a taxable income below the annual poverty level boundary in accordance with the provisions governing employment while on IU?

furthermore:

A family friend is willing to create you a position in their company under the auspices of sheltered employment rules in accordance with the laws covering IU & employment.

This position would not exist if you were not there, or would be significantly different if another employee was to be hired to do that job, or would disappear if you left the company?

this job will pay more than the poverty level wage for this year, about 13K?

--------

If that is all correct, then what will happen is once you get paid from this job, and pass the poverty level threshold for income, the VA will (eventually) contact you about the income. Since you are receiving IU the VA monitors your Social Security earnings at some frequency.

They might send you a scary sounding letter about reducing your benefits.

Assuming all those things are in place, and the owner of the business will state in an affidavit (notarize it!) that they created the position for you, blah blah blah, and is willing to deal with the VA red tape for a few minutes, then you are good to go. I would let that person know that as long as you are employed there, and for a little while afterwards, the VA is likely to send requests to validate your employment and that it is sheltered.

One benny you might want to tell your friend is that many states give tax credits to employers that hire disabled vets and will often pay the employer for equipment needed to assist that vet doing their job.

I would suggest calling Peggy and or writing to IRIS and asking what you can do to proactively provide the information to the VA about your protected employment.

-----------------

2 hours ago, lmholmes11 said:

Another route I was contemplating on trying is getting my 80 bumped up to 100 schedular

every veteran contemplates getting bumped to 100% Schedular.

The question is have your conditions worsened to the point you merit that bump.

I have no opinion on if they do or do not. We don't even know what you are rated for.

What I would suggest you do, if this is the path you want to explore, is go read the laws' requirements for each of your conditions. Then get the current DBQ and see what it asks. Evaluate if your conditions have deteriorated to the point of meriting a bump.

If you think they have then look to see if your medical records support your belief.

If your records show your conditions worsening, then file for an increase on each one that does and provide the medical records and lay statements to support the increase.

Be prepared for more C&P exams if you file for an increase.

[lmholmes11]

16 hours ago, GeekySquid said:

Trying to understand your current situation fully.

You are currently receiving IU. Getting paid at the 100% rate ?

You currently don't earn a taxable income from any other source?

or

You currently earn a taxable income below the annual poverty level boundary in accordance with the provisions governing employment while on IU?

furthermore:

A family friend is willing to create you a position in their company under the auspices of sheltered employment rules in accordance with the laws covering IU & employment.

This position would not exist if you were not there, or would be significantly different if another employee was to be hired to do that job, or would disappear if you left the company?

this job will pay more than the poverty level wage for this year, about 13K?

--------

If that is all correct, then what will happen is once you get paid from this job, and pass the poverty level threshold for income, the VA will (eventually) contact you about the income. Since you are receiving IU the VA monitors your Social Security earnings at some frequency.

They might send you a scary sounding letter about reducing your benefits.

Assuming all those things are in place, and the owner of the business will state in an affidavit (notarize it!) that they created the position for you, blah blah blah, and is willing to deal with the VA red tape for a few minutes, then you are good to go. I would let that person know that as long as you are employed there, and for a little while afterwards, the VA is likely to send requests to validate your employment and that it is sheltered.

One benny you might want to tell your friend is that many states give tax credits to employers that hire disabled vets and will often pay the employer for equipment needed to assist that vet doing their job.

I would suggest calling Peggy and or writing to IRIS and asking what you can do to proactively provide the information to the VA about your protected employment.

-----------------

every veteran contemplates getting bumped to 100% Schedular.

The question is have your conditions worsened to the point you merit that bump.

I have no opinion on if they do or do not. We don't even know what you are rated for.

What I would suggest you do, if this is the path you want to explore, is go read the laws' requirements for each of your conditions. Then get the current DBQ and see what it asks. Evaluate if your conditions have deteriorated to the point of meriting a bump.

If you think they have then look to see if your medical records support your belief.

If your records show your conditions worsening, then file for an increase on each one that does and provide the medical records and lay statements to support the increase.

Be prepared for more C&P exams if you file for an increase.

I currently have no other taxable income. Yeah I would be making significantly more than the poverty level. He would have no problem signing an affidavit. 

I have called the VA looking for information on sheltered employment, even VA lawers, and no one has any idea.

 I am currently getting paid at the 100% rate under IU, also Social Security. I am 33 years old, medically retired from the Marine Corps.

50% DOD rating

 80% VA (50% PTSD, 40%TBI, 30% Migraine residuals from TBI, 20% scars)

I think I can get bumped up close to 100, because I also have COPD but have not tried to rate that yet. I have had a Pulmonary Function Test done by the VA, and i fall into the 60% rating criteria according to my air flow numbers. Also, I am going to try for Tinnitus (10%). 

 

Thanks for the help!

 

[GeekySquid]

2 minutes ago, lmholmes11 said:

Thanks for the help!

thanks for responding.

easy responses first.

File for COPD immediately if you have the Caluza Triangle to support the claim

File for Tinnitus if your MOS or Duty Stations exposed you to loud noise or your Caluza event includes likely explosions.

3 minutes ago, lmholmes11 said:

I currently have no other taxable income. Yeah I would be making significantly more than the poverty level. He would have no problem signing an affidavit. 

good

4 minutes ago, lmholmes11 said:

I have called the VA looking for information on sheltered employment, even VA lawers, and no one has any idea.

not surprising

4 minutes ago, lmholmes11 said:

I am currently getting paid at the 100% rate under IU, also Social Security. I am 33 years old, medically retired from the Marine Corps.

so you have a decent income now depending on where you live.

4 minutes ago, lmholmes11 said:

80% VA (50% PTSD, 40%TBI, 30% Migraine residuals from TBI, 20% scars)

PTSD and Migraines are probably good places to ask for increases if you condition matches higher level awards. Look at the Law and the DBQ's to see how they match up to you. Remember that you don't have to have one-for-one exact diagnosis for each level of compensation. medical terms have many analogues so spend time researching those in connection to you conditions.

Now the hard part. there is no definitive path to a sheltered work environment acceptance. It is case by case, just like every rating.

Before starting getting paid, I would suggest getting a clear job description and make sure it is significantly different than any similar job function in the company. Get an offer letter saying how that job is different and created just for you. Get a notarized affidavit stating it was created for you adn will go away if you leave the company or whatever the case is in that context.

I would then go to VocRehab and have them evaluate your ability to do that job in a protected environment. An IMO on this might be your best path, but it is up in the air. On TDIU any hint you can do more than poverty level work is a reason to "review" your TDIU decision. I can envision the VA using it as an attempt to reduce if you use VocRehab to get that letter.

At that point I would start work and wait for them to contact me. It will likely be a letter to reconsider or reduce your award of TDIU. You will be prepared, as far as I can tell,  to respond if you do what i suggested above.

[lmholmes11]

Thank you guys for the replies, its refreshing to actually find people who knows a little about this. I will keep you all posted!