Qualifying for TDIU in a Protected Work Environment

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.

Light duty job 2 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.

PTSD counseling 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.

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.

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.

Rita BarnesRita Barnes
00:03 20 Jan 22
This is a great group of people who really care about your well being. They all treated me as though I was family and helped me with my work comp case in more ways than the average would have.Thank you Jason and Thank you Tina! For doing an awesome job.
Cortex ButlerCortex Butler
18:09 29 Dec 21
I am a Veteran of United States Air Force and was awarded my first 30% in 1996 and have been fighting for my rating for 26 years I came to Perkins and Studdard in 2019 while my mom was in a terrible incident and was given to much anesthesia and through GODS Grace she was spared her life, She is disabled since 2018 and I have been struggling with my life and issues and yet I didn’t call the law firm every 10 minutes or call being rude anytime, I mentioned this as I got to know Jessica more than just a phone call and Mr Studdard was always available when not working on other cases or in court, They always called back and Never had to do a call back, My Review is Simple in Life there peaks and valleys and it doesn’t stop because you have issues, Perkins & Studdard took my case in 2019 in 2021 I received my 100% from VA, I Was Never Rude, I was Never Promised Success, I Was Never Lied too and I was Always Treated with Respect, Friendliness, and Kindness the Real Stuff not a (Money Thing) If You want a firm that Cares about the Client and will work on your case even through a pandemic, Will not lie, will not promise anything will communicate your case and will Give you their Best ALWAYS THIS IS THE Best Law Firm for VETS HANDS DOWN Perkins and Studdard THERE IS NO OTHER 100% we had 5 calls Total Case That’s Taking Care Of Business
annetteMomma nokesannetteMomma nokes
14:29 12 Sep 16
Jason and his paralegal Lisa were on point and on top of their game when it came to handling my worker's comp. injury case. I tried going it alone and the insurance carrier pushed me around. They denied extra physical therapy. They denied injections the doctor recommended to ease my pain. When I turned my case over to Jason things turned around, QUICK. They were at all times attentive and on top of my case. I cannot recommend Jason and his staff enough. If you are hurt at work, this is the firm you want on YOUR side.
Sheila KirklinSheila Kirklin
23:11 12 May 16
Jason Perkins, was my lawyer in a workers comp. case, my case has settled now, and I am very happy for all Jason and his office hard work on my case, he was always there to help me out with any questions that I had or help I needed. Jason is a excellent lawyer and if I ever need another one I would only go to Perkins,Because I believe they would be able to help me in any situation I am in need of..
Anna PabonAnna Pabon
23:16 13 Sep 15
I recommend Perkins Law Firm. Everyone I came in contact with there was very nice. Kim was very helpful and any time I had a question she made sure I got an answer. Ann Margaret really took the time to explain things to me.

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