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.
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.
We provide free consultations to veterans so that they can try to get answers to these questions. This article provides more information about how a free consultation works. If you would like to set one up, just call our office at (770) 214-8885 or complete and submit the form on this page.