In a recent single judge decision before the U.S. Court of Appeals for Veterans Claims, Moncreif v. Shinseki, 12-3207, slip op. (Nov. 25, 2013), the Court overturned a Board decision denying unemployability (also referred to as TDIU) for a veteran that worked in a family owned business. A truck driving company was owned by a husband and wife team. The Court ordered the Board to consider whether this type of employment was marginal employment. “Marginal employment shall not be considered substantially gainful employment." Generally, marginal employment is considered wages below the poverty level.
Further, VA regulations state that if a veteran earns above the poverty level in a protected environment, such a s a family business, marginal employment may still exist. The theory is that a veteran's disability would prevent employment on the open market, but that in a family business that is created or joined by a veteran, the issues a disabled veteran faces in obtaining or maintain employment would to some extent be under the control of the veteran and his family.
What Types of Family Owned and Other Businesses May a Veteran Work for And Still Obtain Unemployability Benefits?
In my experience, the VA is still likely to award a 100 percent unemployability benefit veterans to veteran that work in a protected environment that the veteran or family controls. In my office, we have helped veterans win awards of a 100 percent unemployability benefit where the veteran worked as the manager of a mobile home park that he owned; manager of a rental complex where the owner was also a veteran and understood the issues a veteran with PTSD must deal with; an investor that made money on the stock market, trading part time; a church maintenance man, that had his family come and help him do the cleaning aspects of his job that he was unable to do; a volunteer in a PTSD clinic, only able to work in a protected environment; employee of a large company, that had managers that understood the veterans disability and agreed to allow him to work; owner of a plowing business, who could create his own working hours.
If I am working, is it Possible the VA Could Discontue or Deny Unemployability?
If you are working, get a competent legal opinion on whether it will help or hurt your case for unemployability. While I have outlined a number of cases above where it is possible to work and still receive unemployability, the general rule for most VA raters is that you cannot work and receive unemployability. It is only marginal employment that allows a veteran to receive TDIU; and in some cases, the VA finds that a veteran that is working in marginal employment could be working at regular employment, and denies the claim. Thus, don't assume that the work a veteran is doing is not going to cause a problem, it likely will and a year’s long legal battle with the VA could ensue.