No. In fact, TDIU (or just “IU) benefits are available under certain situations even if you are working. However, income earned from employment must be at or below the poverty level, or from a job that is considered to be “sheltered”. These types of employment are not considered as substantially gainful employment (SGE), but rather “marginal employment”. Marginal employment is considered as “earned annual income that does not exceed the poverty threshold for one person as established by the US Department of Commerce, Bureau of the Census.” For 2016, the poverty level for which a veteran must be working under was $11,880. Below is a graph of the poverty levels from 2011 through 2016.
Alternatively, a job in a “sheltered environment” (such as a family business, sheltered workshop, or a position created or modified to your own needs) is considered to be marginal employment, even if that job earns an income over the current poverty amount. Sheltered employment means that you are given special treatment due to your service connected disabilities that would not normally be given to other employees. 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 only require limited interaction with other people. The veteran’s salary pays his bills, and is over the current poverty threshold. But, because the job has been created 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 SGE, and must not use it against him in determining IU status.
One thing that the VA often overlooks is the requirement that a veteran be able to maintain employment. For instance, a veteran may be able to hold a job for a few months, but then loses the job due to his service connected disabilities. He then may be able to get another job for a few months, before losing that one, and the cycle repeats. In such a case, the veteran is able to get jobs, but he is not maintaining employment, and is eligible for IU.
So, what does this mean on a practical level? First, it means that VA law does allow for some veterans who work to also receive IU benefits at the same time, depending on the circumstances. Second, it means that disabled veterans who are working should not automatically assume that they are not eligible for IU simply because they work.
To get your IU benefits, you will need evidence of unemployment due to a service connected condition (or the limitations discussed above) and medical evidence. Evidence which may help you in proving your case could be letters from former co-workers or employers, medical evidence, or evidence from a vocational expert.
The VA must look at the veteran’s education and training, and how the current disabilities prevent the Veteran from working in the field in which he has been trained. If the veteran has participated in a VA vocational rehabilitation program, and still cannot work due to the service connected disabilities, the VA must also consider this as evidence that the veteran cannot maintain SGE.
It is also important for earnings to be examined in order to determine if the veteran is above or below the poverty threshold. A veteran can produce proof of earnings through pay stubs, tax returns, employer letters, or a Social Security Earnings Record. If the earnings are above the poverty threshold, an evaluation needs to take place to determine if the veteran is working in a “sheltered” environment as discussed above. The veteran will need evidence to prove that the workplace is sheltered, for example, an employer letter verifying the extra accommodations.
When it comes to proving to the VA that a veteran is eligible for IU, the best evidence is a professional opinion from a vocational expert or competent medical doctor concerning the veteran’s ability to secure or follow SGE. The opinion should say it is “more likely than not” that you are unable to work due to your service connected disabilities. The key here is “service connected.”
The VA often will schedule a veteran for a Compensation & Pension (C&P) exam to get an opinion on IU. The exam report must include a rationale as to whether it is as likely as not that the service connected disability or combined disabilities render the veteran unable to secure and maintain SGE. Additionally, the exam report must also include and describe the functional impairment caused by the veteran’s disabilities and how that impairment impacts physical and sedentary employment.
One thing to keep in mind is that if a veteran has multiple service connected disabilities that contribute to unemployability, the VA will likely send the veteran to separate exams for each condition. Each exam will discuss the veteran’s single disability and the functional impairment that the veteran has due to that single disability. For example, a back examiner may say, “The veteran can’t stand at all or can’t walk, but he could do sedentary work.” A migraine examiner may say, “He has to lie down at least once a week for several hours. As long as an employer will give that benefit, then he could work.” And then a PTSD examiner may say, “He doesn’t get along with people too well, so as long as he’s working by himself off somewhere, he’s fine.”
The problem is that the VA will usually look at these three opinions separately, rather than look at them together in order to create a complete picture of the veteran’s disabilities. If that is the case, the best thing to do is get an independent medical opinion that either looks at all the service connected disabilities together, or shows that one service connected disability in particular is the one that renders the veteran unable to work.
One option for an independent medical opinion is a vocational expert, but getting a vocational expert for your case might not be easy for many veterans. If so, another option is going to a VA vocational rehabilitation center and asking for an assessment. Again, it is important that any medical opinion you are able to get regarding your inability to work be limited to only your service connected disabilities.
IU is not always permanent, and you may have to undergo future medical exams to continue the award, once granted. But, there are safeguards in place that make it more difficult for the VA to take away an award of IU.
If the VA does not follow its own rules and regulations when proposing a reduction, the reduction is considered void and unlawful. If the VA has determined that your current disability rating warrants reduction, it must first issue a written notice of proposed reduction. This first notice gives you sixty days to submit evidence to show that your condition has not improved. You also have an option to request a hearing within thirty days of the notice of the proposed reduction. Requesting a hearing may buy you additional time to submit evidence.
Furthermore, there are several protections set forth in the regulations against a proposed reduction. One of those protections is for 100% ratings when based on unemployability. The VA has the burden to demonstrate that actual employability has been established by “clear and convincing evidence” in order to reduce or cut off IU. This is a very high burden to meet. Even if you are working, you are allowed to keep your IU for a full year. However, in cases where the veteran has not returned to work, then the VA has to have really good evidence to discontinue IU.
Under the regulations, if the VA determines that the veteran has sustained improvement and that such improvement warrants reduction of an IU rating, but the record reflects that the veteran is unable to engage in SGE, then IU must be continued. In other words, in cases where your disability has materially improved, your IU rating can still be protected from reduction if the evidence continues to show that you are unable to work due to your service connected disability.
If you submit evidence prior to the expiration of the first sixty day notice, there is a possibility that the VA will find reasonable basis to send you for a re-examination. If it decides to do so, the final rating action is deferred pending the outcome of the new examination. A very important point is that an examination that is the basis for reduction must be as thorough as the examination that established the current rating. Showing up for the VA medical examination is very important. If you do not show up, your benefits can be automatically reduced or terminated. If you are unable to attend on the date scheduled, you must call and reschedule, or have a very good reason explaining your absence.
The VA must review all of the new evidence, including the report of re-examination, in the context of the entire record. The VA will then issue a final rating decision. The second rating decision starts a new sixty-day period. The implementation of the reduction goes into effect on the last day of the month of the second decision.
This means that even if the VA reduces a disability rating, it can’t take away IU unless it has evidence of marked improvement that is clear and convincing, unequivocally demonstrating that you have regained the physical or mental capacity to return to the workforce on a sustained basis.
In the military, the leading causes of TBI both deployed and non-deployed are (in no particular order):
As most veterans are aware by now, the VA has been attempting to turn paper VA Disability Claims files into digital or "electronic" data files. Their goal is to not only reduce the massive amounts of space required to house paper files, but to also hopefully speed up the processing time for disability claims.
The Veterans Benefits Administration provides direct payment to the veteran (or his family) due to the veterans disabilities that were the result of injuries or diseases that happened or were made worse during the veterans active military service.
Until very recently, when a veteran filed a claim, or a request to increase their disability rating, or even to "reopen" a claim that had been denied in the past, then the veteran had no choice but to use paper. The VA would then have to find the earlier claims folder and have it boxed up and shipped to a central location where it was then scanned into the VA Disability claims computer system. This of course would take weeks, sometimes even months, which slowed down the entire claims process. This method also resulted in numerous documents being "lost" or scanned into the wrong file.
With the VBA's ongoing efforts, the veterans disability claims file is now being made available electronically so that when a claim is filed, all the information is quickly found and the processing can begin.
Brad Houston, the Director of the VBA's Office of Business Process Integration has said: "What we're doing is going back and digitizing all the historical records so that when we get those claims in, we instantly have all their past history. It will give claims processors nationwide the ability to instantly acess millions of inactive claim records when needed".
So far the VBA has gathered up more than 500,000 claims files for scanning. There are over 2 million inactive files stored, so they are at least deeply into the process.
As can be expected from anything being done by the Government, there are still many delays and misfiled documents. It is currently taking over 10 months for a veteran to even get a CD copy of his claims file, and that is on claims that are currently "active".
There is no doubt but switching over to a fully electronic/digital system will reap benefits, it is just going to continue to take a very long time.
If you have questions about your veterans disability claim, call us at 1-800-522-4595. We have been representing veterans seeking their VA Disability Benefits for over 27 years and understand how frustrating the VA Claims process can be for anyone seeking veteran disability benefits.