posted on June 26, 2018
Many veterans who apply for disability benefits want to know if they can still work if they receive benefit payments from the U.S. Department of Veterans Affairs (VA) at a 100 percent disability rate. The answer largely depends on the basis for that rating and the veteran’s specific circumstances.
If you suffer from one or more service-connected disabilities and receive a 100 percent rating based on the VA’s Schedule for Rating Disabilities, or a “schedule-based rating,” then, technically, yes, you can still work. However, if you reach that rating, then practically speaking, your condition will probably make it very difficult to work.
On the other hand, if you get benefits at a 100 percent disability rate due to Total Disability based on Individual Unemployability, or TDIU, the answer is no, you cannot work – unless you engage in what’s called “marginal employment.” This is because TDIU is mainly based on the fact that a veteran’s service-connected disability or combination of disabilities prevents the veteran from being able to engage in “substantially gainful employment.”
When you apply for VA disability benefits, the VA will examine the medical evidence, military records and other information in your file and determine your disability rating. The rating should reflect the degree to which your service-connected disability or combination of disabilities impairs your ability to work and earn income. This is called your “earning capacity.”
If you meet all other requirements for VA disability benefits, then the disability rating that the VA assigns to you will serve as the basis for your tax-free, monthly benefits payments. The VA assigns ratings in 10 percent increments between 10 and 100 percent. (You must have at least a 10 percent disability rating to qualify for benefits.) The higher disability rating that you receive, the higher your payments will be. (However, the VA will add to that amount if you meet certain criteria such as having a severe disability or loss of limb(s), dependents or a seriously disabled spouse.)
This is why a 100 percent rating is so important. If you have a 100 percent rating, it will allow you to receive the maximum amount in monthly payments. You can see the different amounts that the VA pays based on your disability rating and other factors at this table on the VA website.
The VA uses the Schedule for Rating Disabilities as an objective guide to determine the severity of your disability and the extent to which it prevents you from being able to work. The VA will give you a disability rating based on a single disability. If you suffer from multiple service-connected disabilities – and that is highly common – the VA will give you a rating that the VA bases on a formula which combines those disabilities.
Many veterans struggle to find or maintain work due to their service-connected disability (or disabilities), even though their schedule-based rating is less than 100 percent,. In those cases, the VA may still pay the veteran at the 100 percent disability rate. This is the TDIU program. If you qualify for TDIU, then you can receive benefits that equal the amount you would have received if you had a 100 percent schedule-based rating.
To qualify for TDIU compensation, one of the conditions that you must meet is that you must be unable to maintain “substantially gainful employment” as a result of your service-connected disability (or disabilities). A decision that the U.S. Court of Appeals for Veterans Claims issued in 2000, Faust v. West, provides a good definition of what “substantially gainful employment” means:
“[O]ne that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income prior to his having been awarded a 100% rating based on individual unemployability[.]”
If you qualify for TDIU, you cannot do work that meets the definition of “substantially gainful employment” unless it falls within one exception. We’ll explain:
Under VA rules, you can still receive TDIU compensation and work as long as your work constitutes “marginal employment.” The VA defines this as work that produces an earned annual income that:
Does not exceed the poverty threshold for one person, or Exceeds the poverty threshold but is still, under the circumstances, “marginal,” including (but not limited to) working in a “protected environment” like a family business or sheltered workshop.
In conclusion, this means that you can work and still receive benefits at the 100 percent disability rate – either a schedule-based rate or TDIU-based rate. However, if you receive TDIU compensation, then your work must qualify as “marginal employment.” Generally, marginal employment will be employment that provides earnings below the poverty threshold. However, in some situations, you can earn above the poverty threshold, but the VA will still consider your employment to be “marginal.”
The disability attorneys at Marks & Harrison have helped countless veterans throughout Virginia to secure the VA disability benefits that they deserve. We understand the challenges that injured veterans face. We want to help you, too. We consider it an honor to serve those who served our country.
If the VA denies your claim for benefits, you disagree with the rating that you received or, perhaps, you disagree with the VA’s determination of whether your work is “substantially gainful” or “marginal” employment, contact us as soon as possible.
At Marks & Harrison, we will provide a free consultation through our office in Richmond or through one of our nine other offices located throughout Virginia. We will review the facts of your case and discuss your rights and all of your options, which may include pursuing Social Security Disability (SSD) benefits in addition to veterans’ disability compensation.