Legal Requirements For Qualifying As Unable To Work
What counts as unable to work in the eyes of the law and the VA?
According to the VA, substantially gainful employment is employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.
In simpler words, if a disabled Veteran can make an income that is similar to non-disabled people employed in the same field, he or she is considered able to work.
To count as substantially gainful employment rather than the income would have to be higher than the poverty threshold per the Census Bureau. In 2016, this was $12,486 per year for an individual under the age of 65 and $11,511 for individuals aged 65 or older.
Exceptions to these rules are disabled Veterans who are self-employed, work in a family business, or find employment in a sheltered environment. In those cases, the VA may consider you for Total Disability based on Individual Unemployability benefits even if you earn an income higher than the poverty threshold.
If you earn money through the Veterans Health Administrations Compensated Work Therapy Program , this will not count as income when the VA considers your eligibility for TDIU.
Va Math And Combined Ratings
The VA has its own way of doing math when it comes to determining disability ratings. Things are fairly straightforward when theres only a single rated disability, but if there are two or more, it can get complicated.
We recommend reviewing our easy-to-follow article on VA Combined Ratings to learn more about how that process works. For more on VA math and how your ratings are calculated by the VA, please also see our easy-to-use VA Disability Ratings Calculator.
Consult An Experienced Tdiu Attorney
Unfortunately, the VA does not always make it easy for veterans to receive the compensation they deserve. Working with an experienced veterans law attorney will help you ensure that you are utilizing every tool that is available to you.
An experienced Veterans Disability Law attorney will be able to help:
- Get you access to an independent medical examiner who is not on the VAs payroll.
- Guide you through the legal process, helping you file the correct paperwork, acquire necessary evidence, and build your case.
- Arrange for a vocational rehabilitation expert to review your case and provide an opinion as to your employability.
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Qualifying For The Vas Individual Unemployability Benefit
The VAs Individual Unemployability benefit represents somewhat of a loophole for disabled veterans in the VA system. It allows a total disability rating for compensation to be assigned to a vet when the vets objective disability rating is less than total according to the VA rating schedule.
The IU benefit, sometime referred to as TDIU , is based on the vets inability to maintain substantially gainful employment due to a service-connected illness or injury.
VA regulations require the vet to have at least one serviced-connected disability rated at 60% or more. Or, if the vet has multiple disabilities, at least one must be ratable at 40% or more, and in combination the vets disabilities confer a combined rating of 70% or more.
Veterans who do not meet the minimum disability rating requirements for IU may be considered if they can demonstrate exceptional or unusual circumstances, such as that their disabilities directly interfere with their employability or require hospitalization often enough to make steady employment impractical.
The veterans claim must show that their service-connected disability or disabilities are sufficient, without regard to other factors, to prevent performing the mental and/or physical tasks required to get or keep substantially gainful employment.
Vets in sheltered work environments, employed by family businesses or self-employed may earn more than marginal employment income and still be considered for IU.
How Vlg Can Help
Veterans Law Group is committed to helping the men and women who so selflessly served our country. The VA is notoriously overburdened, making the claim process a challenging one. If you or someone you love needs help understanding your rights, filing a claim, or fighting for an appeal, we can help. There is no commitment or risk involved in our consultation process, and youll owe nothing until you successfully receive the benefits you deserve. Fill out this form to get started.
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Myth #: Tdiu Is Permanent
Once youve been awarded TDIU benefits, this rating isnt necessarily permanent. If your circumstances change and youre able to maintain substantially gainful employment, you no longer qualify for TDIU. For example, if you use your GI Bill benefits to go back to school and train for a job that accommodates your condition, youd no longer qualify for TDIU after you found work. Instead, youd receive VA disability benefits based on a lower percentage rating that only considers the severity of your symptoms.
TDIU benefits can also be awarded on a temporary basis from the beginning. For example, temporary TDIU benefits can be awarded for an extended hospital stay, surgery, immobilization, or pre-stabilization of an injury that occurred shortly before a Veteran was discharged. This type of TDIU is generally awarded for six months or less, and the Veteran receives compensation based on their lower percentage rating when the TDIU approval expires.
Apply For Benefits With An Alpha Advocate Vets Helping Vets
Our Alpha Advocates evaluate all claims to ensure that the veterans we serve receive the highest level of compensation for their service-connected disabilities, including whether or not there is an opportunity to submit a claim for total disability benefits based on individual unemployability.
If you are already receiving disability compensation from the VA but are unable to work because of your service-connected disabilities, the Alpha team can help you prove eligibility for full disability benefits based on your unemployability.
Please contact Alpha to discuss your options or to get started on your claim for TDIU.
Note: All representation coordinated by Alpha is provided by our employees, the Advocates, who are accredited by the Department of Veterans Affairs . No private organization that trains and employs accredited agents has been legally recognized by the VA for the purposes of preparation, presentation, and prosecution of claims. This work must be done by the Advocates themselves and not organizations.
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Evidence Requirements For Tdiu
- Evidence of at least one service-connected disability AND
- Evidence that the service-connected disability or disabilities are sufficient, without regard to other factors, to prevent performing the mental and/or physical tasks required to get or keep substantially gainful employment AND
- One disability ratable at 60% or more, OR
- If more than one disability exists, one disability is ratable at 40% or more with a combined rating of 70% or more.
The VA website on TDIU gives two examples of situations where TDIU is appropriate. Before you read the examples, however, it is important to note that the VA disability rating system is not additive, which means if a veteran has two disability ratings, one at the 60% level and one at the 10% level, their combined rating is not 70%. According to the VAs Combined Ratings Table, the combined rating would actually be 64%.
A Veteran has a service-connected heart condition evaluated as 60% disabling. She has been able to work without difficulty until last year when she began to experience chest pain with any exertion. Her physician recommended that she retire as soon as possible. She subsequently filed a claim for increased disability compensation. Evidence regarding the Veterans work history and education was reviewed by the Rating Team. As it confirmed the Veteran was individually unemployable due to her service-connected disability, entitlement to compensation at the rate payable to a 100% disabled Veteran was granted.
OR
How To Get 100 Percent Disability From Va
- You must be a Veteran.
- You must have at least one service-connected disability rated at 60% or higher OR
- Two or more service-connected disabilities with at least one rated at 40% or more with a combined rating of 70% or more.
- You must be unable to maintain substantially gainful employment as a result of your service-connected disabilities .
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Representing Veterans Nationwide Disability: Its All We Do
Our office is committed to making veterans aware of their VA benefits and helping qualified veterans receive their benefits after a claim has been denied. In appeals, we always seek to secure the compensation our injured veterans rightfully deserve in order to provide for themselves and their family.
As experienced and accredited attorneys with the Department of Veteran Affairs, our firm is highly knowledgeable of VA requirements and the related process. We will fight to get the benefits you deserve.
If you have been wrongfully denied, our office promises to pursue your appeal aggressively and to be a relentless advocate for you.
We also work with qualified and experienced medical professionals and vocational experts to help process your VA appeal. Our legal staff will further assist in gathering all needed medical records, investigative reports, evidence, and statements from witnesses.
We will provide assistance for many types of issues on appeal, including, but not limited to: Dependency Indemnity Compensation, Agent Orange, Total Disability based on Individual Unemployability , Traumatic Brain Injury , and Special Monthly Compensation due to TBI, PTSD, and other mental health issues.
Please feel free to call Cameron Firm, PC at 800-861-7262 to discuss your case.
We represent veterans with all types of appeals, including appeals involving the U.S. Court of Appeals for Veterans Claims and:
Employment In A Protected Environment
This is the other situation which the CFR allows. The specific examples from the regulation are family businesses or working in a sheltered workshop. The meaning is that there must be special considerations for the Veteran to allow them to work. In such an instance the CFR states Veterans may earn over National Poverty Level. Veterans must understand that if they begin to earn over the poverty rate, the VA will most likely investigate to determine if their particular situation meets the requirements.
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Straight From An Unemployability Lawyers Lips: 5 Ways To Win Your Tdiu Claim
As a veterans benefits attorney, I have worked on and won countless TDIU claims since I began working with Sean Kendall. Total Disability based on Individual Unemployability , or simply, Individual Unemployability provide a 100 percent rating to veterans when their individual ratings do not add up to 100 percent. The basic requirements are that you have to be a veteran, and your service-connected disabilities prevent you from maintaining gainful employment. Sounds simple but TDIU claims are denied all the time. In my experience.
Demonstrate The Link Between Disability And Service
Make sure that a link is established between your physical or mental state and the incident that occurred during service. This can be accomplished by submitting hospital records from physicians in the form of a Nexus Letter for VA disability benefits. Additionally, you may wish to utilize studies, published papers, and scientific data.
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Marginal Employment & Tdiu Benefits
This is the type of income that many veterans are aware that they can receive even after being granted TDIU Benefits.
Simply go to the US Bureau of Census website, and look up the poverty threshold for one person. .
You will see that, for 2014, the poverty threshold for one person is $12,316 per year , or $11,354 . In most cases, veterans are advised that these poverty thresholds are the VA unemployability income limits.
So, this is the first way that you can earn an income and continue to receive a 100% TDIU rating without breaking the VA unemployability income limits: ensure that whatever income you make stays below the poverty thresholds for your family size.
Each year, the VA will ask you to verify your employment to determine whether you are eligible to continue to receive TDIU Benefits. They typically require that you use VA Form 21-4140 or 21-4140-1 to do this report.
The VA does cross check 2 databases that I know of: Social Security databases that record your work/income history, and IRS databases that record your family income on your annual tax returns. Word to the wise: if you are telling different income stories to different federal agencies, you are playing with fire, and may even be committing fraud.
If you indicate in this form that your income is higher than the poverty threshold, a proposal to reduce your TDIU benefits will be forthcoming.
Its one of the few times that the VA acts with a sense of purpose when they want to STOP paying you.
Am I Eligible For Disability Benefits From Va
You may be eligible for disability benefits if you meet both of the requirements listed below.
Both of these must be true:
- You have at least 1 service-connected disability rated at 60% or more disabling, or 2 or more service-connected disabilitieswith at least 1 rated at 40% or more disabling and a combined rating of 70% or moreand
- You cant hold down a steady job that supports you financially because of your service-connected disability. Odd jobs dont count.
Note: In certain casesfor example, if you need to be in the hospital oftenyou may qualify at a lower disability rating.
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Va Benefits Increase Tip #: Use Myhealthevet To Get Your Current Symptoms Documented In Va Medical Records
If youre having symptoms of a disability condition, andespecially if those symptoms are now worse, you need to ensure these symptomsget documented in your VA medical records.
Did you know you can secure message with your VA healthcareprovider, and those message notes become part of your VA medical records?
Yep, its the truth.
Veterans, your secure messages from MyHealtheVet go straightinto your VA medical records.
This means you can document symptoms of your disabilities,which will be critical when you prepare and file a VA disability increase claim.
For example, lets say youre reviewing the PTSD Rating Scaleand youre already service connected at 30% for PTSD, butyou believe your mental health symptoms are much more severe, and you should beat 70%for PTSD based upon 38CFR VA Schedule of Ratings.
and start a secure message conversation with your VA mental health provider.
Youll want to tell them about your current mental healthsymptoms.
For example, you could type a message such as:
Its imperative that your current symptoms get documented insideyour VA medical records.
Why do I say this?
Well, remember that all VA disability ratings come down toseverity of symptoms.
You need to prove that your symptoms are now worse, and inour experience, the best way to do that is with new and relevantmedical evidence.
You must explain HOW your current disability is limiting or affecting your work, life, and social functioning in a negative way.
Will My Wife Get My Va Disability Check When I Die
Are a Veterans Disability Compensation Payments Continued for a Surviving Spouse After Death? No, a veterans disability compensation payments are not continued for a surviving spouse after death. However, survivors may be entitled to a different type of benefit called Dependency and Indemnity Compensation.
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% Va Disability And Working Vs Tdiu And Working
Under VA regulations, however, the benchmark for IU claims is not whether or not the veteran is capable of working it is whether or not the veteran can engage in substantially gainful occupation. According to the VAs procedural manual, substantially gainful occupation refers to an occupation that is ordinarily followed by the non-disabled with earnings common to the particular occupation in the community where the veteran resides.
In other words, a substantially gainful occupation is a job that a non-disabled person can perform, with earnings above the poverty threshold. For example, substantially gainful might include a job as an office clerk, a bookkeeper, a flight attendant, or a sales associate. A substantially gainful occupation would require the employee to be competent, efficient, able to maintain a client relationship, and reliable.
This is important, because substantially gainful is not the standard that the regional office raters use. Instead, they tend to drift toward the Social Security mindset, where the veteran has to prove that he or she is completely unable to work.
Is A 100% Disability Rating Permanent
A 100 VA disability rating is not automatically granted permanent status however certain situations can deem it permanent.
For instance, the VA can seek to reduce a veterans rating, but to do so, there needs to be evidence that the veterans conditions have improved. Notably, VA cannot rely on superficial examinations to show improvement when issuing a rating reevaluation.
Also, if a veteran has had a 100 VA disability for more than 20 years, VA will not reduce it unless there is evidence of fraud.
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Can A Veteran With Unemployability Can Work
You can work and collect VA disability benefits as long as you are not receiving benefits called Total Disability based on Individual Unemployability . If you qualify for TDIU, this means you may be able to get disability benefits at the same level as a veteran who has a 100 percent disability rating.
Can The Va Change A 100% Disability Rating Or Unemployability
Both a 100% disability rating and unemployability have the potential to be determined permanent and total.
To assign a permanent 100% rating the VA must classify your condition as permanent and total . The VA classifies disabilities as P& T when it is believed that there is little to no chance of recovering or improving your condition. P& T ratings are protected from being reduced and may entitle you or your family to additional VA benefits. The VA can classify someone as P& T whether their benefits are via a schedular rating or unemployability.
If you need assistance with VA disability claim, we are here to help. Call Bosley & Bratch at 953-6224 or complete the form below.
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