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.
The care, knowledge and professionalism shown by Jason and Tina of Perkins Studdard were beyond reproach. I was informed and updated through every phase of the process and the overall outcome was to my advantage. I highly recommend that if you ever have the need for a workman's comp or VA compensation attorney, Perkins Studdard are the ones that you need to call hands down. True concerned knowledgeable professionals.S Oz
Extremely happy, after many years of uncertainty.
Very thankful for all their support helping me get what I deserve! From the VADibujando con FJ
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I had an excellent experience working with Jason Perkins at Perkins & Studdard on my workers’ compensation case. Jason was professional, patient, and truly cared about helping me. He made sure I understood every step of the process and worked hard to get me a great settlement. I’m very thankful for everything he did for me. If you need a workers’ comp lawyer, I highly recommend Jason Perkins and the team at Perkins & Studdard — they really go above and beyond for their clients!Cosmic Energy
Amazing work by an amazing firm. Mr. Studdard has personally explained to me what is going on with my claim and how he will move forward on getting things done. He has always been available to speak. Jessica Hyatt is also a pleasure to work by keeping me up to date on the claim and also letting me know what is needed from me. This firm is professional, effective and definitely client friendly.Richard Moreno
I highly recommend this law firm it’s truly been a blessing to me and my family . The attorneys treated me very well very respectful they listen to me. They understood how important this was to our family. They answer all our questions they return calls to us. They explained everything in detail to us.I know that it was because of the law firm that we received a quick decision from the VA which our claim was granted.Tanya Henderson,Hawkins,Wilson
I highly recommend Jason and his staff. His professionalism and experience proved to be very valuable in helping my case. He is very knowledgeable in his field of work.Eric Bowles
Travis has an amazing team, when I hit a brick wall with my case, he immidiatly gets on board to get to the finish line. 80% to TDIU in about 3 months.
Additionally, working with Jessica has been an absolute pleasure, she is a strong part of their entire team.
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What can I say about Travis and Jessica besides thank you from the bottom of my heart. You two worked hard for me. I had no clue when it came to the VA and was about ready to just give up, but with your help and support we made it to the finish line. Yes, it took a couple of years, but it was worth it in the end. If anyone is looking for help with working with the VA these are the people that can do it for you. The VA tried to pull a fast one on me, but Travis was faster and called them on it and they backed down. Thank you both again for everything you did for me and thank you for what you do for all veterans everywhere.Tony Butts
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.
