The Veterans Law Group focuses on representing disabled veterans who are unable to work due to one or more service-connected disabilities.
A veteran is entitled to be paid at the 100% disability rating if he can establish that his service-connected disability[ies] preclude him from maintaining gainful employment.
In VA law, such claims frequently go by the abbreviation “TDIU,” referring to a Total Disability rating based upon Individual Unemployability.
It is a common misunderstanding that a veteran can only qualify for a TDIU rating if he meets or exceeds a certain percentage disability requirement: namely, a single service-connected disability rating of 60%, or a combined service-connected disability rating of 70%. The VA is mostly responsible for this misunderstanding.
The truth is that a veteran can qualify for a TDIU rating any time one or more of his service-connected disability[ies] prevents him from obtaining employment, regardless of the percentage of the disability rating.
A disabled veteran can receive over $3,000 a month from the VA in TDIU benefits. Additional money is awarded if a veteran is married or has dependent children or parents.
If you are currently working but don’t earn more than the federal poverty threshold, then the VA may consider that to be “marginal” employment.
Marginal employment means that your employment is not substantially gainful. Therefore you may be entitled to TDIU if you qualify.
If you are currently working in a protected work environment, for example, a family business, or at a job that allows specific accommodations, and your earnings are above the federal poverty threshold, you may still be entitled to TDIU benefits, because the VA does not consider a protected work environment to be substantially gainful employment.
The VA uses this term “substantially gainful” to mean employment for which the veteran is earning above the poverty level. The poverty guidelines for 2018 indicate that a person making less than $12,140 a year is earning below the poverty level.
VA regulations indicate that sheltered employment (e.g., self-employment, working for a family business or in a position from which you cannot be fired) does not count as substantially gainful employment.
These terms clarify that a veteran is entitled to TDIU if his service-connected disabilities prevent him from getting a job and/or prevent him from keeping a job.
Some physical disabilities such as back or knee problems might be easily noticed by an interviewer and might prevent a veteran from getting a job. Other disabilities, such as PTSD, might not be evident in an interview but hinder a veterans ability to keep a job as time goes on.
Veterans are often denied TDIU claims because the VA believes that the veteran is capable of so-called “sedentary work.” But the VA is often wrong. For one thing, the VA cannot simply speculate that a disabled veteran is physically capable of performing sedentary work without some medical evidence to justify this conclusion.
In addition, “sedentary work” has a particular legal meaning. Both the Department of Labor and the Social Security Administration define sedentary work as follows:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a).
Through its rulings, the Social Security Administration has further refined this definition to mean employment generally requiring six hours of sitting in a typical eight-hour workday:
In some disability claims, the medical facts lead to an assessment of [residual functional capacity] which is compatible with the performance of either sedentary or light work except that the person must alternate periods of sitting and standing. The individual may be able to sit for a time, but must then get up and stand or walk for a while before returning to sitting. Such an individual is not functionally capable of doing either the prolonged sitting contemplated in the definition of sedentary work (and for the relatively few light jobs which are performed primarily in a seated position) or the prolonged standing or walking contemplated for most light work. (Persons who can adjust to any need to vary sitting and standing by doing so at breaks, lunch periods, etc., would still be able to perform a defined range of work.).
Therefore, if a veteran’s disability[ies] precludes him from sitting for prolonged periods, then he is not capable of engaging in sedentary employment.
Unfortunately, the VA does not always make it easy for veterans to receive the compensation they deserve. Working with an experienced veterans law attorney will help you ensure that you are utilizing every tool that is available to you.
An experienced Veterans Disability Law attorney will be able to help:
Typically, disabled veterans are awarded Social Security Disability benefits before receiving their entitled VA unemployability benefits.
Social Security Disability benefits can be used to strengthen Total Disability Individual Unemployability claims, especially if the social security award covers the same disability[ies] involved in the TDIU claim.
If you have applied for Total Disability Individual Unemployability benefits, but the VA refuses to acknowledge your claim we urge you to contact us for a free consultation.
The Veterans Law Group has been helping veterans and their families obtain the compensation they deserve for over two decades. We only focus on VA disability cases, so you can have peace of mind in knowing we’re always up to date on the law and the everyday practice of the VA.
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