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You may still be eligible for TDIU if you are currently working, but your employment must be “marginal.” You must also meet VA’s rating criteria to qualify.

What Criteria Must My Employment Meet to Qualify for TDIU?

You are eligible for Total Disability Based on Individual Unemployability (TDIU) if you are not able to obtain and maintain “substantially gainful employment.”

The Definition of Substantially Gainful Employment

Per the U.S. Department of Veterans Affairs (VA) M21-1MR manual, substantially gainful employment allows a person to “earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.”

This definition is very vague and determining whether your job is substantially gainful can be difficult. However, there are two main scenarios in which a veteran may be employed, yet still qualify for TDIU.

Employment That May Allow You to Qualify for TDIU

Marginal employment: If you earn above the poverty level from your employment, then according to VA, your employment is substantially gainful. If you are working but earning below the poverty level, VA considers this employment “marginal” which does not qualify as substantially gainful.

For example, if you are only able to work 10 hours per week at a coffee shop and thus earn below the poverty threshold, your employment may qualify as marginal.

Working in a protected work environment: If you work in a protected work environment, VA may still consider you to be eligible for TDIU. VA reviews such arrangements on a case-by-case basis but, generally, employment that allows certain accommodations without which you would not be able to continue working does not fall under the umbrella of substantially gainful employment.

More specifically, a protected work environment could be demonstrated by one or several of the following being true of the veteran’s situation:

  • The veteran does not need to complete critical job functions due to their limitations (e.g., attending meetings).
  • The veteran is not as productive or as reliable as other employees (e.g., Truck drivers at Company A must make 10 deliveries a week. A veteran hired at Company A only needs to make five deliveries because of his disabilities).
  • The veteran does not receive any negative consequences for erratic behavior or mistakes that stem from the veteran’s disability (e.g., A veteran’s traumatic brain injury causes them to forget directions. They forget to deliver important documents to a client, but their employer does not penalize them).

To establish that you work in a protected work environment, you may need several types of evidence, such as a statement from your employer or your W2s or paystubs.

Can I Be Self-Employed and Still Receive TDIU?

Self-employed veterans may still be eligible for TDIU if their self-employment is considered marginal.  In other words, their annual earnings do not exceed the poverty threshold.  Annual earnings above the poverty threshold are deemed substantially gainful, and therefore not marginal.

What Is the Rating Criteria I Must Meet to Qualify for TDIU?

In addition to establishing that you are unable to maintain substantially gainful employment due to your service-connected disability(s), you must also meet VA’s percentage criteria for TDIU. Per VA regulation 38 CFR 4.16(a), you must either:

  • Have one service-connected condition rated 60 percent or higher; or
  • Have at least two service-connected disabilities, one of which is rated at least 40 percent disabling, with a combined rating of at least 70 percent.

If you do not one of the above, but your service-connected condition(s) render you unable to work, you may qualify for extraschedular TDIU.

For a Free VA Disability Case Evaluation With Chisholm Chisholm & Kilpatrick LTD, Call 800-544-9144

If you were denied TDIU benefits, the veterans lawyers at Chisholm Chisholm & Kilpatrick LTD may be able to help.  We offer free consultations to all veterans seeking VA disability benefits. To discuss your case with a member of our team for free, call our office today at 800-544-9144.

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