Schedular 100% Va Disability And Your Working Status
One issue that frequently arises in this context is whether a veteran who is working is able to obtain a 100% VA Disability compensation, especially when their current disabilities do not meet the rating criteria for 100.
VA Unemployability, also known as TDIU or IU covers veterans in this tricky predicament. Even under a schedular TDIU rating or IU, the question still remains, can you work and receive Unemployability? The name itself references being unemployable after all.
Now, while this may seem like an obvious yes or no answer when youre dealing with the Department of Veterans Affairs, there rarely is a clear-cut yes or no.. The best answer to this question is that it depends on the specific TDIU claim and the veterans total disability rating.
If you have time, feel free to check out below our video on VA unemployability and working. Past the video, we break down working and VA benefits further!
How Do I Receive Tdiu
To receive TDIU benefits, the veteran must apply for disability compensation and fill out two additional forms:
- Veterans Application for Increased Compensation Based on Unemployability
- Request for Employment Information in Connection with Claim for Disability Benefits
You have to provide medical evidence in support of your disability benefits application. That evidence may include doctors notes, medical test results, and other documentation. The VA will also review your work and educational background. This evidence is used to determine whether you are able to hold down any sort of gainful employment.
Who Can Qualify For An Individual Unemployability Benefit
Any Veteran unable to continue “substantially gainful”employment due to a service connected condition can apply for some type of individual unemployability benefit.
A job is defined as a “substantially gainful” occupation if its wages exceed the national poverty threshold.
In some situations, veterans may qualify for Individual Unemployability even if their job pays above the poverty threshold.
Any service-related physical or mental impairment can qualify for individual unemployability, and the qualification can be scheduler or extra-schedular TDIU.
The scheduler and extra scheduler requirements to qualify for individual unemployability include the following:
- The veteran’s Disability is service-connected and rated to at least 60% disabling OR
- The veteran has multiple service-related Disabilities, and one condition is rated at least 40%, and the overall rating of both conditions is at least 70%.
The extra-schedular TDIU is for veterans with conditions that prevent them from working but do not meet the required percentage threshold. These cases are common among older veterans with severe health conditions like back pain.
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Can You Get Over A 100% Va Disability Rating
No, by law you cannot have more than a 100% rating but also because the VA states a person cant be more than 100% able-bodied.
To Summarize:
- Veterans with schedule of ratings disability percentages may legally have substantial gainful employment even if they are rated at 100% disabled UNLESS they receive Total Disability/Individual Unemployability compensation.
- Receiving the Individual Unemployability benefit which designates you as 100% unemployable means you cannot work a job deemed substantial gainful employment that elevates your income above the official Census Bureaus definition of the poverty line.
- In reference to Individual Unemployability, it does not matter how much or how little you work-the measure of gainful employment here is whether or not your earnings rise above the poverty threshold as determined by the government.
- If youre still not certain of your individual circumstances it may be best to consult with a lawyer.
Joe Wallace is a 13-year veteran of the United States Air Force and a former reporter for Air Force Television News
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Can Veterans Receive Iu Indefinitely
The answer to that question is yes, no, and maybe. IU can be granted in a few different ways. One way is Temporary. Obviously, that one wont last forever, so lets not get into detail about that. The area we want to focus on is the non-temporary kind.
When granted IU, a Veteran can be subject to review. For instance, if you are granted IU based on a 70% rating for PTSD, and that later gets reduced to 50%, then you would no longer be entitled to IU. There are situations in which a Veteran can be granted IU indefinitely. It is often referred to as Total and Permanent, or TDIU. This often comes when a Veteran has lost a limb but is not limited to a situation like that. Also, if you have IU for 20 years or more, you are not likely subject to a review. As with anything in the world, and especially the government, there are some exceptions.
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How Can A Veteran Earn An Income And Stay Within Va Unemployability Income Limits
To answer this question, we need only look to the law.
For those of you that dont know what TDIU is, I encourage you to read this post to get a basic understanding of the 2 types of TDIU Benefits. To those of you trying to win your VA TDIU Claim, I encourage you to consider whether a copy of the VA TDIU Field Manual, or the VA TDIU eBook Package will help you understand and improve your VA TDIU Claims.
38 C.F.R. §4.16 the section of the Code of Federal Regulations that states the requirements for eligibility for TDIU Benefits, states the following:
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
Now, as Ive discussed before on the Veterans Law Blog, the law does not clearly define what substantially gainful occupation is.
But the law DOES define what Substantially Gainful employment IS NOT.
Read the rest of 38 C.F.R. §4.16:
So there you have it the 2 ways that Veteran can earn an income while receiving VA TDIU benefits and stay within the VA unemployability income limits: when the employment is marginal and when the employment is sheltered.
Well look at them in more detail, below.
Truth be told, I have no clue why Congress wrote the laws this way when they wrote them someday Ill dig into the legislative history to understand it.
How Long Do Veterans Disability Benefits Last
By Jean C. ONeill, Contributing Author
Mostveterans of the United States Armed Forces who have a disability connected totheir service are eligible for veterans disability benefits. Generallyspeaking, disability benefits are available to disabled veterans as long as theveteran remains disabled and until his or her death.
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Do You Work In A Protected Environment Tdiu Income Limits May Be Waived
You can earn more than $13,590 per year and still qualify for TDIU if you work in a protected work environment.
If an employer makes special accommodations for your disability that enable you to keep working and earning above the poverty threshold, the VA classifies this as employment in a protected work environment.
The VA doesnt have a defined policy on which special accommodations qualify a job as a protected work environment.
Examples of special accommodations might include being paid the same amount for less work or productivity than other employees, or being excused from mandatory training. Veterans who work in a family business often qualify for TDIU if theyre given time off due to their disability but still paid the same.
If you apply for TDIU, the VA will make a judgment about whether or not your job is in a protected environment based on the facts of your case.
Including a statement from your employer detailing your special accommodations and relating those to your disability will help demonstrate to the VA that you work in a protected environment.
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What If I Need Help
Filing a claim with the VA can be stressful and confusing. Veterans Guardian VA Claim Consulting can support you in filing a VA claim. Our team will guide you through the paperwork and prepare you for a meeting with the VAs representatives, so there arent any surprises when the time comes. Fill out the form on our Contact Us page for a free consultation.
Why You Need Experienced Legal Representation
VA disability claims are complex under the best of circumstances. TDIU applications are particularly challenging because there is more room for misinterpretation of the requirements. An experienced veterans benefits lawyer can help you gather the necessary evidence to support your claim, including documentation of your earnings, medical opinions regarding the nature of your disability, opinions from vocational experts, records from your application for Social Security disability benefits, and lay statements from coworkers or supervisors who can provide additional insight into your work history or continued job performance.
Legal representation is also beneficial when you have a college degree. Although the VA does consider your education and work history in awarding TDIU benefits, simply having a degree doesnt mean you are able to work. If you are unable to work in specific work environments or perform tasks that are crucial to the type of work you are qualified to do, you need a lawyer who can ensure youre not unfairly penalized for your education.
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Does Iu Stop At Your Retirement Age
The answer is actually no. The VA will not take away IU just because you could retire. Can the VA take away IU if you walk into a VAMC and start bragging about how you are an excellent kick boxer and recently started remodeling some houses? There is a good chance IU payments will stop.
Keep in mind, this blog is not a comprehensive overview of Individual Unemployability as a whole, but rather a few notes on eligibility. IU has a whole is much more complicated than I can fit in a single blog. If you would like to know more about this subject or would like to become a client, give us a call.
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Am I Still Eligible For Total Disability Individual Unemployability If Im Currently Working
If you are currently working but dont earn more than the federal poverty threshold, then the VA may consider that to be marginal employment.
If you are currently working in a protected work environment, for example, a family business, or at a job that allows specific accommodations, and your earnings are above the federal poverty threshold, you may still be entitled to TDIU benefits, because the VA does not consider a protected work environment to be substantially gainful employment.
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Tdiu Permanent And Total
If your service-connected disabilities have progressed to the state that youre no longer able to work, you may be wondering how you will pay your bills. Fortunately, the VA offers special benefits to unemployable disabled veterans, including TDIU permanent and total benefits.
As veterans ourselves, we know how overwhelming it can be to deal with VA. As VA accredited lawyers, were ready to help our fellow servicemembers receive the benefits theyve earned. Contact us today to learn more.
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Can I Own My Own Business/be Self
Veterans can be self-employed and still receive TDIU if they meet the TDIU criteria and do not surpass any income limits that apply to their situations.
If the veterans income from self-employment is below the poverty threshold, it may not be considered substantially gainful but rather marginal employment, which does not prohibit a TDIU award.
If the income from self-employment is over the poverty threshold but is considered sheltered employment, the veteran can still receive TDIU.
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How To File For Tdiu Vs 100 Percent Disability
To file for TDIU benefits, youll need to submit a regular disability claim along with a few extra forms.
To file for the most common type of TDIU benefits , you must meet the minimum service-connected rating requirements and fill out VA Form 21-8940. This form asks about:
- The service-connected disabilities that prevent you from working
- Any hospitalization information in the last 12 months
- Your work history from the last five years
- Names and addresses of employers
- Highest gross earnings per month
- Total income from the past 12 months
In addition, recent employers must complete VA Form 21-4192. This form includes:
- Employment information
- Time lost during work due to your disability
- Concessions made to you by your employer due to your disability
- Reason for your termination with the employer
- Duty status if youre in the Reserve or National Guard
- Any entitlements or other benefits youre receiving
- Your employers remarks
If you dont meet the rating minimums and therefore are pursuing extra-schedular TDIU, the process is slightly different. You must submit the following documents to the Director of Compensation Service:
- A complete statement of your service-connected disabilities
- Your employment history
- Educational and vocational attainment
- Any other factors that impact the issue
Talk To A Va Disability Lawyer If You Have Concerns Or Wish To Appeal A Decision
The laws surrounding VA Disability and other benefits can be murky, and you can sometimes feel stuck in the wheels of bureaucracy when trying to apply or appeal a termination of benefits. In most instances, you shouldnt have to worry about being employed while receiving VA Disability, but if you have concerns you can refer to a Florida VA disability lawyer near you.
Hoskins, Turco, Lloyd & Lloyd can provide you with an experienced attorney to manage your case, offer advice, and provide you with representation when facing the VA or other institutions. Learn more about your legal rights and options within the disability system when you call 460-1990 or contact us online to schedule a no-risk, no-cost case review.
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How Does Tdiu Work
Not everyones path to applying for TDIU will look the same. One veteran with clearly diagnosed and VA-rated disabilities may be eligible for schedular TDIU, while another veteran may need to apply for extraschedular TDIU, which entails a closer examination of their level of disability and inability to work.First and foremost, and regardless of the nature of your disabilities, your disabilities must prevent you from securing and holding gainful employment. And again, your combined disability rating does not need to reach 100%.
You may be eligible for schedular TDIU in one of two ways. First, you may have a single disability that is rated 60% or higher. Second, you may have two disabilities, one of which must be rated at least 40%, which together add up to 70%.
Extraschedular TDIU may be sought if your disabilities do not make you eligible for schedular TDIU, but for a unique reason, you are still unable to maintain gainful employment. In cases like this, you must go through the extra step of having the Director of Compensation Service make an initial determination about your claim to see it warrants receiving benefits.
Sheltered Employment & Tdiu Benefits
Another way that Veterans can earn an income while receiving TDIU Benefits and without breaking the VA unemployability income limits is by participating in what is called sheltered employment.
There are many ways that your income can be considered sheltered, but 2 that are clearly identified in the regulation itself:
1) Family business
2) Sheltered Workshop
Now, just because you are working for a family business doesnt mean your job is considered sheltered employment. It has to be what the regulation refers to as a protected environment.
N.B. Veterans case law is not 100% clear on what constitutes a protected environment or sheltered employment or marginal employment for TDIU purposes. I strongly encourage that you get legal advice from an accredited VA attorney if you believe that your work is sheltered/marginal/protected so that you do not lose your TDIU benefit because you exceed the VA unemployability income limits.
A protected environment occurs when the employer makes special accommodations to employ and provide an income for a family member or a disabled worker. This happens quite a lot a family business, to reduce its tax burden or simply to help another family member, pays a disabled Veteran family member an income that they would not otherwise be able to receive.
How can you tell if there is a protected work environment so that you ensure your income does not get flagged as exceeding the VA unemployability income limits?
What do I mean here?
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