100% VA Disability and Working
Jenna: Good afternoon, and welcome to CCK’s Facebook Live. My name is Jenna Zellmer, I’m an attorney here at CCK, and joining me today are Rachel Foster and Nick Briggs, who both work on veteran’s benefits appeals at the agency. Today we’re going to be talking about 100% VA disability ratings and when a veteran should and should not work. As always, please feel free to leave your comments in the question box below, we will do our best to try to answer them, and you can also find more information on our website at CCK-law.com. So, let’s get into it. 100% disability ratings. I think the most frequent question that we get from veterans is that they already have social security disability, or they’ve previously been rejected for social security disability, and there’s a question about how those two interact and whether or not a veteran can get both at the same time or whether one precludes you from getting the other. So Nick, do you want to talk a little bit about the distinction between social security and VA disability benefits?
Nick: Absolutely. So, social security disability benefits are based on sort of a boom or bust assessment of whether or not you’re unable to work due to your conditions. But in the case of VA compensation, if a veteran is service-connected for numerous conditions, VA is going to determine the ratings that need to be assigned for those conditions, combine them, and then whatever that rating ends up being is going to determine how much money you’re paid. So there are certainly going to be situations where a veteran might be receiving a certain rating and they’d still be able to work in that situation and receive compensation for what they’re service-connected for.
Jenna: Great. And Nick mentioned combined ratings. So, Rachel, do you want to give a little bit of background on how VA rates disabilities, and what it means when they combine ratings, because it’s not as simple as a lot of people think it should be.
Rachel: Unfortunately, not. So, VA assigns evaluations based on the diagnostic criteria for the disability a veteran is service connected for, and the severity and the types of criteria that they have to meet in order to get that disability evaluation. So, a veteran can have a single disability at 100%, or they can have multiple disabilities that combine using VA’s specific map and their rating table to get a 100% disability evaluation.
Jenna: So that’s what we would call a schedular 100% essentially, right?
Jenna: So, a veteran could have one single service-connected disability, which based on the schedule gets them a 100% rating, or they could have multiple disabilities that combine up to 100%. And veterans who have the schedular 100% disability, can they still work? Nick?
Nick: Yes, absolutely. At the end of the day there are going to be certain conditions like Rachel mentioned that are considered to be totally disabling in and of themselves, and oftentimes they may have some aspect of the rating criteria that considers work, but oftentimes there are going to be conditions, like an active cancer, that are just considered totally disabling regardless of whether or not the veteran is working. And then if a veteran has numerous conditions that combine to 100%, the same basic logic applies. It’s ultimately based off of how the ratings combine independent of whether or not the veteran is working.
Jenna: Yeah, so, I think the takeaway here is that if you have a 100% rating that’s based on the rating schedule, that doesn’t necessarily preclude you from working and you could also at the same time be receiving maybe social security disability benefits, but that might… You shouldn’t probably be working in that situation, but you could get social security benefits and also have a schedular 100% rating. Speaking of 100% schedular ratings, there is another aspect of 100% ratings called “permanent and total”. Rachel, do you want to explain a little bit about what a “permanent and total” rating is and how it differs from a normal schedular 100%?
Rachel: Sure. So, if a veteran is rated not only 100% but also permanently disabled, that essentially indicates that VA doesn’t expect that condition to improve. So, the veteran wouldn’t be expected to attend traditional review examinations. That disability evaluation is protected. And I think what’s important to know is that just because you have a schedular 100% or you’ve been entitled to TDIU, which we will get to later, that doesn’t necessarily mean that VA considers you “permanent and total”. That’s a special designation that’s on either your rating code sheet, sometimes you can find it if you’ve been deemed eligible for dependency educational benefits, and there’s a whole bunch of different ways to figure out if you’ve been deemed “permanent and total”, but it’s not the same as just getting a schedular 100% rating. I think that we’ve had Facebook Lives previously about this, and you can definitely find more information on our website.
Jenna: So Nick, can veterans who have “permanent and total” or what we call P&T benefits, can they still work?
Nick: In theory, yes. Ultimately certain conditions might be considered permanent regardless of whether or not the veteran is working. But again, the idea of a total disability rating presumes that the condition is actually totally incapacitating. So, those are factors that VA might consider in whether or not a veteran’s conditions are considered to be permanent in the first place. So there’s no blanket prohibition that you can’t work if you’re permanent and total, but at the same time the employment status might be a factor that VA considers when making that determination.
Jenna: Yes, I think that’s a really good point, because despite all of the stuff that we’re going to talk about today, even though there are technically situations where a veteran can still be working and getting a 100% rating, there’s always that risk that VA is going to consider that factor and either propose severance or propose a rating reduction based on what they consider evidence that your disability isn’t necessarily as severe as it once was. So that’s definitely something to be aware of. So, we talked about permanent and total. The flip-side of that is “temporary total” ratings. So, Rachel, can you talk to us a little bit about what those mean?
Rachel: Sure. So, “temporary total” evaluations are established with an understanding that it’s a temporary situation. So, circumstances that we see that with is hospitalization lasting more than 21 days, or any kind of surgery or treatment requiring recovery or convalescence for months at a time.
Jenna: And Nick, can veterans with temporary total rating still work?
Nick: Again, there’s no blanket prohibition here necessarily, but again, these are conditions that are considered to be temporary. So, there’s necessarily going to be situations where if the treatment is discontinued, then the condition is no longer considered to be totally disabling. So, it’s a factor to be weighed – if a doctor determines that you’re able to return to work, then that might be a situation where VA would then discontinue the rating under the regulations.
Jenna: Right, and I think this is all a little bit theoretical because in practice, if you’re hospitalized, you’re not going to be going to work every day, but you still might be employed with your employer, you might just be taking a leave. And so, I think that’s where you can still say you are technically working, you’re employed and receiving a 100% rating, but that 100% rating is meant to compensate for the fact that you were maybe in the hospital for 21+ days based on your service-connected disability. And so, that’s kind of how the interplay between work and 100% ratings for “temporary totals” work. So, those are all – we’ve talked about schedular 100% ratings and all of the different ways you can get to 100% rating without the big one, TDIU. So let’s go into TDIU. And I know we have a lot of information on our website about TDIU. We’ve done a lot of Facebook Lives about TDIU, blogs, and so I’m sure all of our viewers are aware of what it is, but we can just give a brief overview about what TDIU is and how veterans qualify for it. So, Rachel, do you want to take us away.
Rachel: Sure. So, TDIU stands for Total Disability rating based on individual unemployability. VA looks at it under Section A and Section B which really just refers to whether the veteran meets the schedular criteria. If a veteran has a single disability rated at 60% disabling, they meet the schedular criteria for TDIU. Also, if the veteran has multiple disabilities that combine to at least a 70%, and one of those disabilities is a 40%, that also meets the schedular criteria. But even if they don’t meet those schedular requirements, they can still meet the criteria for TDIU under Section B that just requires referral to the director of compensation.
Jenna: So there’s kind of a threshold level of ratings that you need to meet in order to maybe get a little bit more of a lenient adjudication about TDIU. But I think a lot of times veterans who have lower ratings, maybe some think that they shouldn’t even apply for TDIU, but like you said Rachel, even though you have a lower rating, maybe 30% rating for something, maybe you have a 40% rating but it doesn’t get to that higher level under A, if you still think that your service-connected disability is preventing you from working, you should definitely still apply for TDIU and you should talk to either a DAV Rep, a VSO or attorney, whoever is helping you with your claim, because it’s definitely a complicated area. We’ve kind of talked about working, so VA doesn’t use the word “work” necessarily, it uses the word whether or not a veteran is engaged in substantially gainful employment. So, do you want to talk a little bit about that?
Nick: Sure. So, the term “substantially gainful employment” is basically defined as a job that earns more than the US Census Bureau’s poverty threshold, which is a little over 13,000 dollars now. So, basically, if a veteran is working but making less than that amount each year, and they’re limited to that work due to their service-connected conditions, their employment would be considered marginal a.k.a. not substantially gainful. So they’d still be entitled to TDIU in that situation.
Jenna: Yes, and we’ve had some litigation about this, about what “substantially gainful employment” actually entails, because VA really defines it just basically based on what it’s not. They said substantially gainful employment is not marginal employment. So I think going back to the theme of today’s Facebook Live, can a veteran still work while they’re having TDIU? Technically, yes, if it’s marginal. I think another way that a veteran can work while benefiting from TDIU is if they’re working in a protected work environment, and we have some case law on that as well, which I’m sure we have links to on our website. But, do you want to talk a little bit about what a protected work environment means?
Rachel: Sure. So, it really refers to anything that’s like a family business or a sheltered workshop where a veteran is working. They may be earning income above the poverty level threshold, but the work that they’re doing, in comparison to other employees that are doing the same kinds of functions and role responsibilities, they’re receiving significant accommodations from their employer, or from themselves if they’re self-employed, that actually allow them to continue their work. Otherwise, if they didn’t have those accommodations, they wouldn’t be able to sustain that same kind of employment. Accommodations could be anything as far as they don’t have to do the same kind of work and responsibilities that other employees have to do. They may, as a result of a disability, have to miss work more often. They may have more behavioral or have more difficulty interacting with co-workers, but otherwise they’re not getting reprimanded for that or facing termination, accommodations like that.
Jenna: And, Nick, how has VA actually defined protected work environments?
Nick: Part of the problem is that they haven’t. It’s determined on what they consider to be a facts-found basis, meaning either the regional office or the board will look at the facts, look at the accommodations provided, and then make a determination based off of that evidence, whether or not they consider that particular work situation to be protected. So, oftentimes, that can make it difficult for a veteran to know what evidence they should submit, because without a standard to compare their situation against, it’s really all kind of up in the air.
Jenna: Right, so, all the accommodations that Rachel just mentioned, those are all really good examples of the ways that a veteran might want to demonstrate that their work is protected work environment. But because VA hasn’t necessarily defined the term, it’s not guaranteed that those types of things are actually going to lead to an award of TDIU, and as I mentioned before, CCK has done a lot of work in this area. It started with a case called Cantrell, which was specifically about what a protected work environment was, and then after that we had a couple of other cases called Withers and Ray, of which the core is essentially trying to get VA to define its terms and provide more guidance for veterans so that they know what they need to demonstrate in order to get TDIU. Going back to what Rachel said about accommodations, I think it’s important to note that the American Disabilities Act does require employers to provide reasonable accommodations for their employees. It’s legal to discriminate on the fact that an employee is disabled, but I think the difference here is that if those accommodations become unreasonable to the point where a veteran, the only reason a veteran is still employed is because the employer is going out of their way to provide this very protected work environment that would allow a veteran to work in, and if they didn’t have that protected work environment, they wouldn’t be able to work in any other area, and that’s kind of where we see the line.
Nick: Another important consideration is the idea that the accommodations are meant to allow the veteran to perform the essential functions of their job. So, at the end of the day, regardless of any accommodations provided they can’t meet those expectations, then it should be considered a protected work environment. So, when a veteran’s putting together evidence in support of their case, one of the things that they can look to is how social security or the Department of Labor defines the critical functions of their job, so that they can demonstrate, “Hey, I can’t do this, I can’t do that, regardless of what they do to help me perform those functions”.
Jenna: Good. Finally, Rachel, can you just remind our viewers of how a veteran can apply for TDIU?
Rachel: Sure. That can be done by completing and submitting a VA Form 8940, it’s an application for increased compensation based on unemployability.
Jenna: Great. I think if you’re filing a new claim, obviously you want to be aware of all the new VA regulations surrounding appeals reform, which we have a lot of information on our website. If you’ve previously filed a claim in the past, you might need to file a supplemental claim now. So there’s a whole lot of still moving parts that’s all kind of figuring out how VA’s Appeals Modernization Act is going to work. So I really encourage you to speak with the Veteran Service Organization, an attorney or otherwise accredited agents that can kind of walk you through this process. And just to correct myself, I did call it a claim, but VA and the court has said that entitlement to TDIU is not a claim, it can be tied to an increased rating claim. So, if you have a pending increased rating claim and you believe that you are unable to work, that’s something that you can raise as part of that claim. So, just to wrap it up, does anyone have any closing thoughts?
Nick: Just one thing to point out is that while VA typically requires you to submit the form at the end of the day, TDIU is one of those issues that they’re supposed to consider if it’s been raised by the record. So if you do have an increased rating claim pending, and you submit evidence showing that you’re unable to wok due to those conditions, TDIU is supposed to be something that the VA considers on it’s own.
Jenna: Great. So just to wrap up, if you have a 100% rating that doesn’t necessarily mean that you shouldn’t be working, but there are a lot of unpredictable situations in this area. So if you are working and you have a 100% rating, I would just encourage you to make sure that you are on the up-and-up and make sure that VA knows about everything. And if you have entitlement to TDIU, you definitely shouldn’t be working unless it’s in a protected work environment or you’re making below the poverty level. So, thank you again for joining us this afternoon. My name is Jenna, I’m here with Rachel and Nick, and we’ll see you next week.
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