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I have a job, does that mean I cannot get TDIU?
No. In fact, TDIU (or just “IU) benefits are available under certain situations even if you are
working. However, income earned from employment must be at or below the poverty level, or
from a job that is considered to be “sheltered”. These types of employment are not considered as
substantially gainful employment (SGE), but rather “marginal employment”. Marginal
employment is considered as “earned annual income that does not exceed the poverty threshold
for one person as established by the US Department of Commerce, Bureau of the Census.” For
2016, the poverty level for which a veteran must be working under was $11,880.
A “sheltered” job could be something like a family business, sheltered workshop, or a position
created or modified to your own needs and is considered to be marginal employment, even if
that job earns an income over the current poverty amount. Sheltered employment means that
you are given special treatment due to your service connected disabilities that would not
normally be given to other employees. For example: a veteran with PTSD works for a family
friend’s business. The family friend provides the veteran with an office and duties that only
require limited interaction with other people. The veteran’s salary pays his bills, and is over the
current poverty threshold. But, because the job has been created to his individual needs (limited
interaction with other people), his job is considered to be sheltered, and therefore falls under
“marginal employment.” The VA cannot consider this job as being SGE, and must not use it
against him in determining IU status.
From the Desk of Drew Early, Veterans Law Attorney
The CAVC recently decided a case involving IU, more specifically, when a veteran is to be considered as working in a “protected environment” such that the veteran is employed but wouldn’t be otherwise because of special accommodations made for the veteran in the workplace. In such an example, the veteran’s earnings would not necessarily preclude a grant of IU. In the case at point, the veteran ostensibly had a full-time (and very responsible job) as a park ranger—even carrying a weapon as part of his duties. Due to a service-connected condition, he routinely had to go to the bathroom quite often. He sought IU, arguing that his employer had made special accommodations for him and without those accommodations, he couldn’t work there. Therefore, in his view, it was a protected environment and his earnings, although above the minimum typically defining “substantial gainful activity”, shouldn’t keep him from getting IU. VA disagreed and said that in this case, he was working and it should not be considered as a protective environment “because VA knows what a protected environment is when it sees it” (paraphrasing the Court). The Court disagreed with VA and said VA needs to come up with a definition of protected environment. So, in all the recent furor about IU, be careful what you ask for. Looks like the Agency will continue to formalize and further define rules around IU; rules consistent with the determination of unemployability in other Federal agencies.
The VA Form 21-4140
Dear Mr. Strickland;
I was awarded IU in 2013. No where in the rating letter did it mention I needed to send in a
VA Form 21-4140, to verify employment for the last year. One of the letters in my package
from June 12, 2013 is a letter saying I now have commissary and exchange privileges.
It goes on to say "This is to certify that veteran is an honorably discharged
veteran of the Air Force and has service-connected disability evaluated as 100 percent.
The veteran has not been scheduled for future examinations".
Today I received in the mail a form Seattle VA a letter saying "We recently sent you a VA
Form 21-4140, "Employment Questionnaire". This form is sent periodically to all
veterans who have been granted entitlement to total disability payments based on
Unemployability. It is your personal verification of employment history over the
past year. It is required to be completed and returned if you
wish to maintain your current Unemployment status.
We have no record that you have completed and returned this form to us..
We propose to discontinue your entitlement to Individual Unemployment.
I NEVER RECEIVED A VA FORM 21-4140. My initial rating letter for IU does not
mention I need to verify my employment yearly. I am on social security and have
not worked in three years. I worked at the VA until May 2012 and had to quit
because of VA disability. All this was put in the package when I applied for IU. I am 65 years old.
Do you know if I only need to submit the form 21-4140-1, or do I need to submit it
with ADDITIONAL INFORMATION? I just don't understand getting this letter from the VA.
Any help you can give me will be greatly appreciated.
The event you're experiencing with the 4140 form is routine. They forget to mail it
and then blame it on you. Don't make this a bigger deal than it is.
Just complete the form accurately and return to the Evidence Intake Center.
The VA Claims Intake Center
Department of Veterans Affairs
PO Box 5235
Janesville, WI 53547-5235
Toll Free FAX Janesville – 844-822-5246
Veterans Law Attorney Robert Friedman Talks To
You About TDIU Claims For Veterans With PTSD
Since 1990, Robert A. Friedman has represented veterans
nationwide seeking disability benefits from the VA and Social Security.
His practice focuses on helping veterans with PTSD obtain TDIU benefits.
How to Apply for TDIU Benefits
A “total disability rating based on individual unemployability,” often referred to as
TDIU, IU, or individual unemployability, is an avenue for the VA to compensate a
veteran who can’t work due to service-connected disabilities at the 100% rate when
the veteran’s disabilities do not actually combine to 100%.
How do I file a claim for TDIU benefits?
Current VA policy requires a veteran to complete and submit VA Form 21-8940
(available here) before VA will decide a claim for TDIU benefits. It is imperative
that a veteran who wants to be considered for individual
unemployability benefits submit a VA Form 21-8940.
In some instances, VA will send you the form if the evidence in your claim
expressly or reasonably raises the issue of individual unemployability benefits.
But don’t wait for VA to prompt you – if you cannot work due to your service-connected
conditions, begin the process of completing and submitting the form as soon as possible.
What is an “inferred” claim for TDIU benefits?
If you filed a compensation claim that included evidence indicating you are
unemployable due to a service-connected disability, the VA is then obligated to
consider and decide entitlement to TDIU benefits. For example, if you filed a claim to
increase your PTSD rating, and the evidence you submitted in support of that claim
includes a statement from a psychiatrist that you are unable to work as a
result of your PTSD, you have submitted an “inferred” claim for TDIU benefits.
Inferred claims can be used to get an earlier effective date if you’ve already been
granted entitlement to individual unemployability benefits. If the evidence in your claim
created an inferred claim, then in certain situations, the date of that inferred claim
should serve as the effective date for the grant of TDIU benefits. VA will rarely
self identify an inferred claim, so it’s important to have
someone review your file for potential entitlement to an earlier effective date.
Call or email me if you were recently denied entitlement to TDIU
benefits or were recently granted entitlement but think you deserve an earlier
effective date. Remember, you only have one year to file
a notice of disagreement against a VA rating decision.
We often refer to Individual Unemployability as TDIU or IU.
The Individual Unemployability Benefit is equal in every way to a 100%
Schedular rating. The compensation is 100% and that dollar amount is equal to both ratings.
If the veteran is rated as 100% Schedular, he or she may work at any job
they are capable of doing. The veteran who is rated as IU may not hold "gainful employment".
The IU veteran is required to complete a yearly VA Form 21-4140 to verify that there has
been no employment in the previous year. Each Regional Office seems to have its
own way of delivering these forms, all too often they don't deliver them at all.
It is the veterans responsibility to
ensure that the 4140 is completed and delivered to VA (to the Evidence Intake Center)
on or about the anniversary of the award each year.
The veteran should download the form, print it and deliver it to an Evidence Intake Center.
Either the 100% Schedular
Either rating may be a temporary one with future examinations scheduled.
What Is Individual Unemployability?
Individual Unemployability is a part of VA’s disability compensation
program that allows VA to pay certain veterans
compensation at the 100% rate, even though VA has
not rated their service-connected disabilities at the total level.
What Is the Eligibility Criteria for Individual Unemployability?
A veteran must be unable to maintain substantially gainful
employment as a result of his/her service-connected disabilities.
Additionally, a veteran must have:
One service-connected disability ratable at 60 percent or more,
Two or more service-connected disabilities, at least one
disability ratable at 40 percent or more with a combined ratingof 70 percent or more.