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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Splinter

Do I have to quit my job?

Question

Hello everyone. See Below for what I received from VA

 

A little about me currently. I have a job that is very low stress (work nights no people no stress) very secure because I work in a mountain so im surrounded by granite. I work on computers so it engages my mind and keeps me as active as possible and is my passion. So my question is do I have to quit my job? Thanks!

 

June 23, 1999 June 30, 2019

VA Benefit InformationSummary of benefit informationYou have one or more service-connected disabilities:Yes         Your combined service-connected evaluation is:100%               You are considered to be totally and permanently disabled due solely to your service-connected disabilities:Yes           The effective date of when you became totally and permanently disabled due to your service-connected disabilities:July 01, 2019

major depression disorder, recurrent, severe, post traumatic stress disorder, insomnia disorder and eating disorder, NOS                    100%                          Service Connected

 

SMC-S1

Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of major depression disorder, recurrent, severe, post traumatic stress disorder, insomnia disorder and eating disorder, NOS rated 100 percent and additional service-connected disabilities of migraine including migraine variants, tinnitus, independently ratable at 60 percent or more from 07/01/2019.

SMC-K1

Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of major depression disorder, recurrent, severe, post traumatic stress disorder, insomnia disorder and eating disorder, NOS rated 100 percent and additional service-connected disabilities of migraine including migraine variants, tinnitus, independently ratable at 60 percent or more from 07/01/2019.

 

Thanks all!

 

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Splinter, it looks good for you. You are permanent and total, with SMC's. You can continue with the job you love and won't be penalized. Keep up with your treatments and keep the faith.

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10 minutes ago, GBArmy said:

Splinter, it looks good for you. You are permanent and total, with SMC's. You can continue with the job you love and won't be penalized. Keep up with your treatments and keep the faith.

I truly hope that is true GBArmy!! This job is very peaceful and calm and as I mentioned it’s my passion so it’s more of a hobby I just get paid to do it

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If you are 100% schedular you can work up to your ability to do so. Its when you have TDIU that it gets weird, and you can't work. I work part time in a library a few hours a day. Its not much, but it gets me out of the house and around people, still, and I make a little money on the side to facilitate my guitar habit. Ive been working part time since 100% for a few years now with no issues, other than having to file taxes.

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You have a relatively unique situation having a single 100% MH rating,  100% P&T status, and working in a secluded environment, which might be constituted as a "protected work environment". In 2017, CCK Law Firm won a precedential ruling which required the VA to spell out what qualifies as a "protected work environment" because §4.16 was not specific enough. Keep in mind §4.16 appears to have been written to apply to TDIU veterans, not regular P&T veterans. The ruling appears to create a grey area which you might be able to swing in your favor if the VA proposes to reduce you.

This is kind of lengthy and I could be wrong, but should be interesting. If I made any mistakes in interpretation, I welcome feedback from other members.

Here's what I used to believe:
I was under the impression that if one has a single 100% MH disability, by definition, that means they are completely socially and occupationally impaired. I have read numerous posts over the years reiterating the same thing with advice that if the VA finds you working then they would potentially propose reduction to 70%. That was based on the VA's interpretation of one being "substantially employed".

§4.130   Schedule of ratings—Mental disorders.

Quote

General Rating Formula for Mental Disorders

    Rating
Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 100

 

However, CCK Law Firm won a precedential decision regarding "protected work environment", which might cover your situation. This is a very interesting read.

https://cck-law.com/news/cck-successfully-argues-precedential-decision-protected-work-environment/

Quote

CCK argued, and the Court agreed in a precedential decision, that the Board’s failure to define what was considered a “protected work environment” made it impossible for the Court to review the Board’s denial and thus required remand. In other words, without a definition of “protected work environment,” VA adjudicators could make decisions that would result in different outcomes for similarly situated veterans, giving the appearance of arbitrary and unequal decision-making. The Court found that since the regulation, 38 C.F.R. § 4.16, provides no standard for defining “protected environment,” remand was required for VA to either define the term or create a list of factors for adjudicators to use.

To read the Court’s precedential decision, click here.

 

§4.16   Total disability ratings for compensation based on unemployability of the individual.

Quote

§4.16   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]

 

CCK's win ordered the VA to define and clarify what constitutes "protected work environment". That was in 2017 and it doesn't look like the VA has updated §4.16 since 2014.

Keep in mind that §4.16 appears to be written for veterans who are TDIU, not 100% P&T.

https://cck-law.com/news/protected-work-environment/

Quote

MARGINAL EMPLOYMENT

Marginal employment comes into play when a veteran is seeking so-called TDIU, a VA disability benefit available to veterans whose service-connected disabilities make them unable to work.  TDIU compensates veterans at the 100% disability rating amount, even if their total combined disability rating is less than 100%.

When it comes to TDIU, VA considers a veteran’s employment “marginal” if the veteran earns less than the federal poverty threshold for one person (in 2017, $12,060 per year for all states other than Alaska and Hawaii). This comparison to the U.S. poverty threshold makes establishing “marginal employment” relatively straightforward and objective. But VA also acknowledges that some employers will make major “accommodations” for veterans with disabilities while continuing to pay them above the poverty threshold, allowing those veterans to maintain employment when they would otherwise (without the accommodations) be unable to work. VA refers to situations like this as “employment in a protected environment” or, more simply, “protected work environment.”

The above article goes into some potential explanations of what constitutes a "protected work environment" and much of it sounds like your situation.

The interesting thing is what is said in §4.16(a). It states that "Marginal employment shall not be considered substantially gainful employment" and goes on to state that protected/sheltered work environments are considered "marginal", too. 

Quote

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.

 

I wanted to give you some more information on "protected work environments". It appears that a lot of the examples provided by CCK's article may pertain to "reasonable accommodations", per the ADA. These are modifications to work policy or environment that allow someone to overcome a disability limitations to perform a job. For example, I am 100% P&T, and have disability ratings including 30% MH rating plus separate neck/back ratings. I work as a computer programmer, but my disabilities were causing me some real problems at work. The cubicle environment was aggravating my hypervigilance and the distance from my disabled parking spot to the cubicle was extreme. My employer fought this pretty hard for years, but my doctor provided medical justification for some changes based on hypervigilance, cognitive impairment, and physical mobility. They eventually implemented the changes and I was able to be productive again. They moved me to a private office with a door that I keep closed. It is adjacent to the building entrance/restrooms and they exempted me from in-person meetings (I call in to those instead). It's like I am a full-time telecommuter, except I perform my work from the office. I do encounter other people during the day in the building, but it is casual and not work related, so it does not interfere with my ability to concentrate. If you want to learn more about accommodations under the ADA, look up the Job Accommodation Network. They have a hotline you can call to get more information.

 

Lets assume the VA sends you a proposal to reduce your rating because you are found to be employed and have annual income above the poverty threshold. You go to the C&P exam. The VARO reviews the findings and proposes reducing you to 70%. You could then argue that you work in a protected work environment which is classified as "marginal employment" under §4.16(a) and CCK's precedential ruling. The VA could then approve you for 100% TDIU given the circumstances. The odd thing is you are back to where you were initially percentage-wise and financially. If they do propose to reduce, it might be worth it to take this approach and try to convince the VA that they could potentially be going through a lot of effort for nothing. Once the VA officially defines "protected work environment", hopefully it will clarify things.

 

 

 

 

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Awesome and thorough answer by Vync.  Im not alone, however, in thinking that you are taking some risk working full time while receiving 100 percent for a mental disorder.  

Continue, if you like, but at least recognize the risk.  

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

and this: https://cck-law.com/when-do-va-ratings-become-permanent

If, after you read the above and are satisfied you are ok, then go for it.  

 

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