By its very name, it should seem like veterans cannot obtain benefits for Individual Unemployability while still employed. But the Court of Appeals for Veterans Claims has countered that assumption, saying working veterans can qualify for Individual Unemployability under certain circumstances. While this may seem counterintuitive, Individual Unemployability is not a benefit for the unemployed. It is a benefit for the unemployable. This subtle difference carves out situations where an employed veteran still qualifies.
There are two established circumstances in which an employed veteran might still be entitled to unemployability benefits. Either the veteran’s earnings do not meet the poverty threshold or the veteran’s employer makes special accommodations without which the veteran would be unable to work. Assuming the veteran otherwise qualifies for Individual Unemployability, these types of employment would not bar him or her from receiving a total rating for unemployability.
A working veteran who makes less than the current poverty level can still qualify for individual unemployability because they are only considered “marginally” employed. If his or her service connected disabilities make it impossible to find higher paying work, the veteran might still be able to get a total disability rating for individual unemployability.
To show a veteran’s income was less than the poverty threshold, start by finding the current poverty threshold. The United States Census Bureau publishes this data yearly. For example, the 2016 weighted average threshold was $12,228. It could be argued that the poverty threshold might be higher based on dependents, but this issue has not been decided by the court.
Having established the current poverty level, gather records to show the veteran’s income level falls below that level. One of the easiest ways to show income level is to use the veteran’s Social Security earnings record and tax returns. Self-employed veterans should report their net taxable income, not the gross revenue.
If the veteran remains employed above the poverty level, it’s possible he or she may still qualify for individual unemployability benefits based on the facts of the case. One such possibility is if the veteran’s employer makes special accommodations or somehow allows veteran to work despite his or her unemployability. Unlike the poverty level test, this argument can be nuanced and complicated.
Special accommodations are unusual things done by the employer to keep the veteran working, without which the veteran could not work. Perhaps the employer allows a veteran with migraines to lay down in a dark room when needed or allows a flexible schedule. Maybe the employer allows a veteran with PTSD to work in relative isolation when most people would work in an open office. These are merely examples. The key is to consider anything the employer does to keep the veteran working when most employers would simply give up.
Another example of unemployability while working is when a veteran works for a family business. A family-run business will be hesitant to fire a relative. When veterans are self-employed or run their own businesses, allowing for flexible hours, they can be considered for unemployability benefits, also.
In the case of special accommodations by the employer, self-employment, or a similar situation in which a veteran is making above the poverty level income and still qualifies for unemployability, documenting a case is difficult. Statements from co-workers or employers can help describe the accommodations made for the veteran at work. In the case of self-employment, the veteran’s statements can be used to explain how he or she would not be able to work for someone else.
A recent court case, Cantrell v. Shulkin, tackled the issue of marginal employment. The Court specifically examined the concept of a “protected environment,” which allows a veteran to work despite being unable to meet the standards of a normal employee. Unfortunately, the Court did not provide much guidance as to the specifics of this type of employment.
If you believe you qualify for individual unemployability despite being employed, craft an argument. Gather statements and evidence showing how the work environment is protected. While the lack of clarification on the subject makes it difficult to prove, it also provides flexibility in the argument. Veterans should not be afraid to seek unemployability benefits if they believe they are only marginally employed.
If you are appealing a VA decision and believe you should be receiving unemployability benefits, please contact Berry Law’s team of veterans’ law attorneys today. Your consultation is free.
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