At Berry Law Firm we get a lot of questions about TDIU. This article will answer one of those questions: Can I keep my job and get TDIU? Like most legal issues, issues involving TDIU are incredibly fact-specific. Contact Berry Law Firm if you want to know more information about your case.
TDIU stands for Total Disability Based on Individual Unemployability. Essentially, Veterans receiving TDIU receive compensation as if they were rated at 100% even if their service-connected disabilities do not equal a 100% rating.
You can receive TDIU if you are service-connected for any disability and the disability you are service-connected for is preventing you from working.
The schedular rating for TDIU requires:
You can receive an extra-schedular rating for TDIU if you do not meet the above rating criteria. An extra-schedular rating is an evaluation outside of the normal rating criteria. It is used of exceptional or unusual circumstances. For example, if you are service-connected at 90% but none of your disabilities are rated at 40 percent or higher and you are unable to maintain employment because of your conditions—you may qualify for an extra schedular rating for TDIU.
TDIU requires that the Veteran be unable to maintain substantial employment.
Substantially gainful employment means a veteran can earn a livable wage. What that means varies case by case. Essentially, there are two examples of not substantially gainful employment
Marginal employment is employment that does not provide a meaningful salary. The definition is intentionally vague because TDIU is such a fact-specific inquiry.
Thankfully, the law has provided further insight into what qualifies as “marginal.” Marginal employment is employment that does not provide a salary above the poverty level. According to the regulation, marginal employment always exists when the veteran’s 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. 38 C.F.R. 4.16(a).
The regulation also stated that marginal employment can be found on a fact found basis. This includes, if a veteran is working a part-time position or if their salary does not meet the poverty level for their specific location or family size. The regulation also states that family businesses or sheltered workshops can be considered marginal employment.
The definition of a sheltered workshop is even greyer than the definition of a marginal workshop. The most obvious example is a family business. The reason a family business is considered a sheltered or protected workshop is because the family will often make accommodations for disabilities that other businesses would not. If your relationship with your employe0,r outside of your working relationship, is part of the reason you have kept your employment, you may be working in a sheltered environment.
A good test to tell if you are working in a sheltered workshop is to ask if the company you work for goes above and beyond to accommodate your disability. Under the Americans with Disabilities Act, employers are required to provide reasonable accommodations for disabilities. Have you been provided accommodations? Were those accommodations above “reasonable?”
Another law employers have to follow is the Family Medical Leave Act or FMLA. FMLA applies to employers with 50 or more full-time employees. The FMLA requires employers to provide 12 weeks of unpaid time off to all full-time employees every 12 months. Have you taken more than 12 weeks of time off? Has your employer allowed you to return to your job after an extended leave, even when the law didn’t require them to?
It’s also a good idea to look at your local laws and see if your employer is allowing you extra protection above the requirements of your local employment laws. This doesn’t necessarily mean that you are working in sheltered employment, but if your employer offers special protections for Veterans or your relationship with the employer allows you to have special accommodations the VA may view you as working in a sheltered environment.
Additionally, if you are your own boss you may be in a sheltered environment. If you are self-employed the most important piece of evidence you can present to the VA is your income and how your disability affects your income.
You must fill out an additional form for a TDIU application. A VAF 8940. You also have to ask your former or current employers to fill out at VAF 21-4192.
There are several important parts to the 8940.
Part one contains all your identification information. Make sure this information is correct or the VA may associate the form with the wrong file.
This section deals with what conditions affect your ability to work. You do not have to list all of your service-connected conditions in this section. For example, if you have a desk job and your knee disability does not affect your ability to work, don’t list it in this section. But, if your knee disability prevents you from going to your office or the pain from your disability does affect your ability to work, absolutely list it in this section.
Only put service-connected disabilities on your 8940—or conditions that you are filing for service connection. If you do not believe that your conditions are connected to service then do not put them on your 8940.
It is also important that you include any treatment you have had for your disability. Include where you had the treatment when you had the treatment, and who treated you. You can include extra pages if you need to.
Part three is your employment statement. In this section, you need to include five years of working history. Even if you have not worked for the past five years, you need to put the last five years that you did work. For example, if you did not have a job at all in 2021, but you worked in 2020, then you need to put that you worked in 2020. If you did not work at all in 2019, then you need to put your work history for 2018. Often Veteran’s 8940’s look like this for the time periods
January 2019-May 2020 worked at ABC Company
April 2017-April 2018 Worked at XYZ Inc.
March 2014-May 2016 GHF Co.
August 2013-February 2014 LMN LLC.
If you do not have five years of work history, including your time in the military.
Make sure you include the correct addresses and information for all your past employers.
Part 4 is your school and training. This information is important to determine if you are capable of substantially gainful employment. You can be unemployed and still able to maintain a position. Make sure to include all training and information you received. If you have not received any, make sure you fill out box 24A.
Part five is additional remarks. You can write anything in here that you would like. If you have a reason that you believe your condition affects your ability to work—write it in the remarks section. You can also attach statements from yourself and friends, family, coworkers, or supervisors that detail why you are unable to work.
Part six is your signature. Sign and date the form. You do not need a witness to sign until you sing with an X.
When you mail the form in the VA will mail it to your employer VAF 4192s and they will also mail the forms to you.
It is ultimately the Veteran’s responsibility to make sure their employers fill out the 4192s.
A 4192 is a “Request for Employment Information in Connection With Claim for Disability Benefit.”
You can send these to your employer with your identification information filled in. Your current and former employers must then confirm:
If you have the contact information for your past employer it is advisable for you to contact them to ask if they can complete this form and send it to the VA.
Yes, but it will only get granted if you can prove that you work in marginal or sheltered employment.
To discuss the specifics of your case, contact Berry Law Firm.
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