To be eligible for Total Disability Based on Individual Unemployability (TDIU), you must be able to prove that you are not able to be substantially gainfully employed and are not currently working. There is an exception to this rule where TDIU may be awarded if the Veteran is marginally employed. Marginal employment means that you are working and earning an income, but the earnings are below the poverty level.
According to the United States Department of Veterans Affairs (VA), a Veteran can qualify for 100 percent TDIU if they are unable to secure substantially gainful employment in the community where they reside, and their condition is service-connected and qualifies for benefits. The VA does not consider marginal employment to be substantially gainful, so you may be eligible for benefits while maintaining your current job. Find out more by contacting a disability attorney.
Determining Marginal Employment
If you have a disability that permits you to only work less than half of the normal hours or if your income earnings are less than one-half of typical earnings for the occupation and location of employment, the VA may consider that to be marginal employment.
Earning under the poverty level is one determination of marginal employment, but there are certain situations that may limit your employment and be protected even if the Veteran earns above the poverty level such as:
- Working in a sheltered workshop
- Working at a family business
- Working at a job that is typical for those who are older or disabled
- Being self-employed and there is a decrease in earnings and productivity or the income from self-employment is below the poverty level
The Veteran may need to provide proof of working in a protected environment and show evidence such as paystubs, W2s, or a written statement from their employer. To demonstrate that a work environment is protected, the following situations may be part of the Veteran’s employment:
- There are specific job functions that are not required for the Veteran due to their limitations.
- Due to their disability, the Veteran is not as productive as others in the same position.
- There are no negative consequences for errors or problems with their behavior that occur at work due to their disability.
The VA considers the following factors when reviewing cases that involve marginal employment:
- Existing opportunities to you and others in your local community
Proving Your TDIU Claim
If you meet the standards for marginal employment and are filing for TDIU, you will still need to prove that you have a service-connected condition that prevents you from working or makes it difficult to be gainfully employed. If the service-connected disability limits you from doing more than marginal employment, a TDIU rating may be given.
In addition to proving marginal employment, you will need to meet the criteria for TDIU. To be eligible for TDIU, you must have one of the following:
- Single disability rating of 60 percent or higher
- Two or more disabilities rated at 70 percent combined or more, with one of the disabilities rated at least at 40 percent
If the Veteran does not meet either rating and is unable to be gainfully employed due to their service-connected disability, they may be given extraschedular consideration for TDIU.
If you have filed a claim for TDIU and it has been denied, even if you have marginal employment, you may be able to appeal the decision. Hiring an experienced disability benefits attorney can protect your legal rights and get you the full amount of compensation you deserve.
Contact Our Office to Find Out More
If you have been denied disability benefits or have questions about a claim, contact the office of Sean Kendall, Attorney-at-Law, for a free, no-obligation consultation. We can help you with the appeal process for any disputes you may have with a claim determination and help make sure your legal rights stay protected. Call us at 877-629-1712 to find out more.