Tdui - beginner

[Smitty81]

Hey guys, I am wanting to file for tdui. I am at 80% combined. 70% MH stacked with anxiety/depression, sleep disturbance (insomnia) due to chronic pain and 20% for clavicle fracture nonunion. I have claims in for tinnitus and migraine and increase on shoulder. I have done all this on my own to this point. I am self employed so I have a protected work environment, I often start late, miss days, etc from not sleeping and being exhausted. So TDIU would be sought after for missed work and being in a protected work environment. I have lay statements to support this but don’t really have much else to include other than maybe pictures of my office/workspace and the mods I’ve made there. Any advice would be greatly appreciated.

[Rattler]

You have a problem in that "self employment" is not a "protected work environment."  If you were not working the 70% plus you other 10% should get you your 100% TUDI. You may still qualify for an scheduler rating if the pending claims adds up to the right %. In a scheduler rating it doesn't matter what you earn. In TUDI you can't work for yourself and claim "protected work environment."

[Smitty81]

9 minutes ago, Rattler said:

You have a problem in that "self employment" is not a "protected work environment."  If you were not working the 70% plus you other 10% should get you your 100% TUDI. You may still qualify for a scheduler rating if the pending claims adds up to the right %. In a scheduler rating it doesn't matter what you earn. In TUDI you can't work for yourself and claim "protected work environment."

I appreciate the feedback. Thank you for taking your time to respond. I have read multiple things about tdiu with self employment using a quick google search that indicates that it is possible. Is there some other information that you are referring to that would contradict these posts? Most are from attorney sites. Protected work environment would be more from the position of taking as many breaks as I need, taking days off as needed, etc.

[broncovet]

A "protected work environment" often means, well, like Sy Robertson.  (Duck Dynasty).  Nobody would doubt that Sy is crazy, and he admits "he doesnt do work".   But their brothers, and family, put up with Sy any way, because he is the founder (Phil Robertson's brother).  So, they cant fire Sy if they wanted to, no matter how many times he messes up.  

Its hard to establish a "protected work environment" when you work for yourself.  Even self employed people mostly have to greet and meet clients as well as produce some type of product or service, and/or manage employees who do the work.  

NOTE:  There is a difference between "self employment work income" and "investment income".  If you own shares of stock, and get dividends from those, you did not produce "work" to earn that income.  However, if you "actively manage" your business, day to day, that's not investment income, instead it's self employment income.  The difference is "earned income" vs investment income.  Earned income requires work, while investment income does not.  

    If you could step away from your business, and not call or go there for a year, and the business continues to run, then it may be more like investment income, but check with your tax professional.   But if you show up every day, and/or do the books..well you may be employing yourself as business management.  

But, understand the difference between SGE and work.  SGE (Substantial Gainful Employment) means you earn over the poverty level, in 12 months time, for your efforts.  Earning $7000 per year, cutting your neighbors grass and shoveling their walks, is not SGE, so you would still qualify.   But, if you earned $60,000 last year, in your business, well you have SGE and would not meet the criteria for TDIU.  

IRS seperates "employment income" from "investment income" and has criteria for that, you could check those:

https://www.irs.gov/individuals/net-investment-income-tax#:~:text=In general%2C net investment income,and most self-employment income.

If in doubt whether your income is investment income or "work", check with your tax professional.  

Edited March 30, 2023 by broncovet

[Smitty81]

4 hours ago, broncovet said:

A "protected work environment" often means, well, like Sy Robertson.  (Duck Dynasty).  Nobody would doubt that Sy is crazy, and he admits "he doesnt do work".   But their brothers, and family, put up with Sy any way, because he is the founder (Phil Robertson's brother).  So, they cant fire Sy if they wanted to, no matter how many times he messes up.  

Its hard to establish a "protected work environment" when you work for yourself.  Even self employed people mostly have to greet and meet clients as well as produce some type of product or service, and/or manage employees who do the work.  

NOTE:  There is a difference between "self employment work income" and "investment income".  If you own shares of stock, and get dividends from those, you did not produce "work" to earn that income.  However, if you "actively manage" your business, day to day, that's not investment income, instead it's self employment income.  The difference is "earned income" vs investment income.  Earned income requires work, while investment income does not.  

    If you could step away from your business, and not call or go there for a year, and the business continues to run, then it may be more like investment income, but check with your tax professional.   But if you show up every day, and/or do the books..well you may be employing yourself as business management.  

But, understand the difference between SGE and work.  SGE (Substantial Gainful Employment) means you earn over the poverty level, in 12 months time, for your efforts.  Earning $7000 per year, cutting your neighbors grass and shoveling their walks, is not SGE, so you would still qualify.   But, if you earned $60,000 last year, in your business, well you have SGE and would not meet the criteria for TDIU.  

IRS seperates "employment income" from "investment income" and has criteria for that, you could check those:

https://www.irs.gov/individuals/net-investment-income-tax#:~:text=In general%2C net investment income,and most self-employment income.

If in doubt whether your income is investment income or "work", check with your tax professional.  

Yeah that makes sense to me about investment income. I’m not really taking the position that I wouldn’t work at all. Based on the information I’ve read elsewhere, TDIU can be awarded when you make more that the poverty threshold, but work in a “sheltered or protected work environment.” Things like being able to take extra breaks, go home early, absenteeism, less productivity than others in the same position, and so on. In other words, without these exceptions, you would be out of a job in the traditional sense, and thus unemployable. I’m curious if anyone has successfully done this, and if so, what was their experience. 

[brokensoldier244th]

It would be difficult, depending on the job. I have accommodations for most of the above including an accomodations to work from home always as long I'm within federal employment. I'm not tdiu, though. 

[Smitty81]

Just now, brokensoldier244th said:

It would be difficult, depending on the job. I have accommodations for most of the above including an accomodations to work from home always as long I'm within federal employment. I'm not tdiu, though. 

Thanks you’re sharing your thoughts. I agree that it would likely have challenges. Rattler mentioned scheduled rating which may be a better route. I guess it just seems really difficult to get past 90%? Id love to hear guys experiences with that too. Because at the end of the day, while I’m not bedridden by any means, which I don’t believe is the threshold, my job/business is getting harder and harder to maintain both physically and mentally. I’ve had to turn down nice projects, run late on others, etc. really appreciate everyone’s input here so thank you.