The concept of TDIU itself can cause a lot of confusion. This article discusses one confusing part of TDIU analysis which is “protected work environment”
As I discussed in a recent article, you can sometimes work and still qualify for TDIU benefits. We know that concept as marginal employment.
That article on marginal employment discussed the general rule that you cannot work and draw TDIU benefits. But, it focused on the other marginal employment exception which allows you potentially to qualify for TDIU when you earn less than the federally-designated poverty threshold.
Generally, you cannot qualify for a TDIU rating if you earn over that amount. But, marginal employment provides another exception to this rule. That exception, known as “protected work environment”, allows you to qualify for TDIU when your earnings exceed the federally-designated poverty threshold.
What is marginal employment within a “protected work environment”?
The federally designated poverty threshold is very low. Many veterans earn more than that amount even if they have extreme difficulty working.
The good news is that these veterans can potentially still qualify for TDIU. This exception focuses on what is known as a “protected work environment” or a “sheltered work environment”. If you meet this exception, you potentially can still draw unemployability benefits regardless of the amount you earn.
What is a protected work environment?
The VA has regulations which address what a “protected work environment” is. The VA regulation is 38 CFR 4.16. Under this regulation, whether something qualifies as a “protected work environment” is a very fact-intensive inquiry.
This inquiry basically looks at whether the veteran is in a very specialized or unique position. While a veteran may have a job earning good money, sometimes that veteran may not normally be able to go out in the national economy and earn that type of money.
An example of a protected work environment
The best example is probably a veteran who has service-connected disabilities and works in a family business. Suppose he works for his father who owns the company. Also, suppose this veteran has severe PTSD.
This veteran has days where he simply just cannot come in. This happens quite often, yet his father keeps him on a salary. The veteran receives a full paycheck every week whether he comes in or not
If this veteran went out in the regular economy, no employer who did not have a special relationship with that veteran would pay him that full salary to work just on the days that the veteran was able to work.
Are family businesses the only type of protected work environments or sheltered employment?
Many protected work environment situations are family businesses. However, veterans can qualify for the protected work environment exception outside of a family business-type situation.
Some specialized programs for veterans or disabled persons allow people to earn full pay even though they are not able to do the full amount of work as a non-disabled person would. Again, no hard and fast rule exists for these situations. It becomes a very fact-intensive inquiry.
Know that VA will look at sheltered employment situation with a critical eye. VA may be very skeptical. So, you likely will have to establish that you have a specialized situation.
You probably will need evidence from your employer that they would not make these accommodations for everyone. Evidence that establishes the uniqueness of your situation will probably help.
What if I have other questions about protected work environment?
The process of dealing with VA can cause confusion and frustration. TDIU is probably one of the more difficult concepts within that VA process.
Our firm tries to provide free information to veterans through our website and our veterans benefits channel on YouTube. Many veterans still need help with particular questions that have to do with the specific facts of their claims.
Travis Studdard is an attorney who focuses on representing veterans in VA disability compensation claims. He regularly writes about issues that are important to veterans and their families.
You can subscribe to his Veterans Disability channel on YouTube.
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Travis and his team helped me get my case done when I couldn't get it done by myself.Everything went much faster and better than I expected.I highly recommend his team for any veteran trying to get a claim processed. Norman Scott,U.S.Army veteranNorman Scott
Jason Perkins and his team are so kind, knowledgable and helpful. They were thorough with all my legal needs and made sure my medical needs were taken care of financially. What I most appreciate is that he was always very clear about what was best for my case, but he also always told me I needed to do what was best for me, both mentally and physically. He was always available to answer questions, made sure I understood, and was willing to let me make decisions regarding my case. His ethics are beyond reproach. He would not take a percentage of a payment he did not help me receive. You can trust him. He always made it clear that my mental and physical well-being were more important than any part of my case. Then he would explain what would be best for the case and why, and allow me time to decide. Being in the Worker's Compensation system was an incredibly demeaning experience. I am a strong, educated woman, but when everyone in a system tells you that you are not worthy of the care you have received your entire life, and you instantly become less than to many of those who are suppose to be caring for you, it would weigh on anyone. I am so thankful I had Jason and his team fighting for me, getting me things I never would have imagined would be denied, like a second opinion before surgery, or physical therapy instead of opioids. I cannot imagine trying to handle this experience by myself.Andri Pilgrim
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When i found this law firm I was going through a hard time not just with the VA but mentally as well. And after i hard denial i reached out to Travis and let me just say that was the best decision of my life. From the first call i knew i had made the right decision they are nothing short of amazing. Shoutout to Jessica and Chandler they both helped ease my stress and make the process so smooth it felt really good to be heard. My only mistake was not reaching out to them sooner. Thank you all so very muchRilesia Singleton
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I understand you want your VA claim to be done as quickly as possible. But remember the ultimate goal – to win your VA disability compensation claim.
You may eventually get there on your own, but it may be after a series of decisions by the Regional Office and Board of Veterans Appeals. Sometimes claims are appealed and remanded several times, which can cause a claim to drag on for years. If you are interested in avoiding unnecessary delay in your claim and want to do everything you can to maximize your chances of success, it is probably a good idea for you to consult with an accredited veterans disability attorney.
We would be happy to talk to you. If you would like a free consultation with our Perkins Studdard veterans disability attorneys just click here or give us a call to begin the process.
