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Can I Work if I Receive TDIU?

Posted by Berry Law on January 17, 2022 in Appeals

Many Veterans rely heavily on TDIU benefits to pay for food and medical bills, utilities, and other expenses. However, TDIU benefits are contingent on a Veteran’s inability to maintain substantially gainful employment. 

What happens if your condition improves or you acquire part-time employment at a local coffee shop? Many Veterans worry about these questions, particularly if their place of employment doesn’t pay them enough to make up for reduced TDIU benefits.

This page will answer whether you can work if you receive TDIU and what factors may affect TDIU benefits and ratings from the VA.

TDIU Explained

TDIU or Total Disability Individual Unemployability is a complete disability rating for Veterans who cannot work directly because of a service-connected disability or many service connected disabilities.

It is a rating reserved for Veterans who cannot obtain or retain substantially gainful employment because of conditions or injuries that stem from their time in service. 

The TDIU rating is the same as a 100% disability rating for typical VA benefits.You will receive the same benefits you would have received if your other disabilities equal 100% under the VA regulations. TDIU benefits can be permanent or temporary. Typically, if the disability affecting your ability to work is permanent your TDIU will also be permanent.  

How Is TDIU Received?

TDIU does have a rating schedule like all other disabilities. The rating schedule for TDIU applies if each of the below conditions is true for the Veteran in question:

  • The Veteran has at least one service-connected disability rated at 60% or higher OR
  • The Veteran has two or more service-connected disabilities with at least one rated at 40% or higher disability. The combined disability rating must be 70% or greater.
  • The Veteran must have been honorably discharged (instead of dishonorably discharged).
  • The Veteran’’s disability affects his ability to maintain substantially gainful employment. 

Typically, you have to be unemployed to received TDIU, but, although these terms seem strict at first, you may still receive TDIU if you work under certain circumstances.

Receiving TDIU benefits involves the same straightforward process as applying for disability compensation. However, the Veteran must also fill out one extra form and get their former employers to fill out another form, listed below:

  • The Veteran’s Former Employer(s) complete the Request for Employment Information in Connection with Claim for Disability Benefits or Form 21-4192
  • The Veteran must complete the Veteran’s Application for Increased Compensation Based on Unemployability or Form 21-8940

You have to be service connected for the condition affecting your ability to work in order to be eligible for TDIU. In order to be service connected for your condition and received TDIU the Veteran must fill out these forms, get their employer to fill out the form, and get service connected for those conditions. 

Once the VA receives the TDIU application, they will review the application and determine whether the Veteran in question should be able to hold down steady and meaningful employment.

Can TDIU Benefits Be Reduced or Terminated?

Yes, under some circumstances. Generally, the VA will only terminate TDIU benefits if it determines that the Veteran’s condition improved to the point that they should be able to maintain substantially gainful employment.

Additionally, the VA may reduce a Veteran’s TDIU rating if they can maintain a position of substantially gainful employment for a single, consecutive year (i.e., there are no breaks in employment within 12 months).

Can You Work and Receive TDIU at the Same Time?

All TDIU benefits are based on the idea that a Veteran cannot either obtain or maintain “substantially gainful employment.”

“Substantially Gainful Employment”

Substantially gainful employment is any employment that allows a Veteran to earn a livelihood with earnings that are common to a specific occupation or community where the Veteran lives.

In other words, substantially gainful employment provides a salary comparable to similar positions in the area or for similarly skilled professionals. This is necessarily a vague definition, making it tough for a Veteran to determine whether their work counts as substantially gainful.

The VA always reviews current working arrangements or professional positions when determining whether a Veteran will receive TDIU benefits.

What Employment Qualifies for TDIU?

Several types of employment may allow a Veteran to still qualify for partial or complete TDIU benefits. These employment types include:

  • Marginal employment means that the Veteran works but earns a salary lower than the poverty level for their state or location. Because the Veteran doesn’t receive a salary comparable to other working professions in their industry, it does not qualify as substantially gainful employment.
  • Part-time employment without the opportunity for full-time employment. If a Veteran can only work eight hours per week at a restaurant, they almost always earn below the poverty threshold. This also qualifies as marginal employment, even if the per-hour salary is theoretically enough to earn a living wage (when worked over a 40-hour workweek).
  • Employment in a protected work environment. The VA often considers Veterans still eligible for TDIU benefits if they are employed in a protected work environment, which often makes accommodations for conditions or injuries. However, the Veteran must prove that they work in a protected work environment if they hope to receive benefits despite their employment status. Evidence can include employer statements, W-2s, pay stubs, and so on.

As you can see, it is possible to work and still receive TDIU benefits as a Veteran with one or more service-connected conditions. However, you’ll need to take a few extra steps to prove that your employment does not disqualify you from TDIU benefits if you want to take advantage of this opportunity.

What if You Are Self-Employed?

If you’re a self-employed Veteran, you might still be eligible for TDIU benefits if your self-employment earnings are considered marginal. You’ll need to tally up your self-employment annual earnings and make sure that they do not exceed the poverty threshold for your state.

If you make annual earnings above the poverty threshold, your self-employment activities may be considered substantially gainful. If you make above the poverty level, you must then prove that you work in a protected or “sheltered” work environment. 

What if you don’t know how much money you’ll make? In that case, you may initially qualify for TDIU benefits. But the VA may reevaluate your benefits amount later, taking your full self-employment income into account. In such a case, you may lose some or all of your TDIU benefits depending on how successful your business is.

Summary

Ultimately, it all depends on the nature of the employment, the type of position worked, and whether the accepted salary will allow the Veteran to earn money above the poverty line for their state.

It can still be difficult to determine what counts as a total disability, whether a position qualifies as substantially gainful employment, and other factors. That’s why legal teams like the one at Berry Law can help with acquiring TDIU and other VA disability benefits depending on your needs.

Whether you need assistance gathering evidence, filing your disability benefits application, or even navigating the disability benefits appeals process, Berry Law can help. We’ve helped thousands of Veterans just like you get the benefits they deserve for their service to our country.

Contact us today for more information and a free consultation.

Sources:

VA Individual Unemployability If You Can’t Work | Veterans Affairs

About VA Form 21-4192 | Veterans Affairs

VA Form 21-8940 | Veterans Affairs