A fundamental tenet of TDIU is the unemployability of the claimant. To receive a greater monthly benefit than the scheduler rating dictates, the VA says that the claimant must demonstrate, through medical records and other evidence, an inability to work.
Unemployability and the inability to work, however, are not categorical or clear-cut. I’ve already written about instances where a veteran can still receive TDIU even though he could complete sedentary work. The VA will, or should, consider a variety of factors when making the unemployability determination.
Further complicating the issue is the concept of marginal employment. TDIU can be granted when the veteran’s disabilities render him unable to secure or follow a substantially gainful employment. Substantially gainful employment is what most people do to support themselves and meet their basic needs; it can be thought of as a living wage. If you think you are engaged in substantially gainful employment, then you most likely are.
Marginal employment, however, is insufficient to support oneself and meet all the commitments and responsibilities that life brings. As a general rule, marginal employment exists when the veteran’s income falls below the poverty threshold for one person. Even if the veteran’s income is above the poverty threshold, marginal employment could be found when employment takes place in a protected environment (e.g. a family business).
An Interesting Example
Interestingly, a veteran can perform the same type of work when marginally employed as he performed when he worked full time. For example, if a veteran was a landscaper and worked forty hours a week for 15 years, but now can only work two hours per week doing the same job, the VA may still consider that marginal employment. The fact that the veteran can perform the same work does not disqualify him from TDIU and that work is not always considered substantially gainful employment.
In the above example, the VA will look at medical evidence and the lay testimony of the veteran and others. A veteran that simply chooses to work less for reasons unrelated to his disability will not receive TDIU. But the veteran that still wants to work, but can only do so for limited hours, may still receive TDIU if that employment is marginal.
Some veterans that receive TDIU cannot work at all; other could engage in work that the VA considers marginal employment but do not want to jeopardize their benefit. A veteran that works is not prohibited by the VA from receiving TDIU. But the issue can be complex and very fact and situation dependent. If a veteran that receives TDIU wants to start working, they should consider the potential pros and cons of that decision.
If you’ve been denied for TDIU because of an employment issue, you may still be eligible for benefits. The VA makes mistakes and a denial letter is not the end of your claim. Contact VA Legal Team today for a free, no obligation case review.