But, can you get a 100 percent TDIU rating if you are still working? Since TDIU focuses on “unemployability”, you might think that you could not.
Where do I find the VA regulations that discuss a 100% TDIU rating?
38 CFR 4.16 is the part of the Code of Federal Regulations that deals with individual unemployability claims. The general rule is that you cannot work and receive TDIU benefits.
But, if you look in 38 CFR 4.16, you would find out that there are some exceptions to this general rule. Toward the second half of that regulation, you will find the exceptions. some exceptions to the general rule which is you can’t work and draw TDIU benefits.
What is the exception about “marginal employment”?
So here’s one way you can do that with limited earnings. The rule says that marginal employment shall not be considered substantially gainful employment. The VA M21-1MR manual defines “substantially gainful employment” as:
Employment that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.
That definition sounds like a bunch of legalese. So, what does it mean in layman’s terms. Basically, it means typical work used to earn a living where the veteran lives.
With regard to marginal employment, 38 CFR 4.16 gives you a couple of examples of what qualifies. One of those examples is marginal employment based on limited earnings.
The regulation says that marginal employment shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the Department of Commerce and the Bureau of Census within the Commerce Department. Basically, you can still earn money and draw your full TDIU benefits if you are below the poverty threshold.
How much can I earn and still receive TDIU benefits?
Black calculator with the printed receipt of allowance
Of course, the poverty threshold can change each year, so you need to check for updated numbers.
The rationale for still qualifying for TDIU through marginal employment is that you are not a full member of the workforce if your earnings are that low. Because of that, VA should not penalize you for trying to get out there and do what you can.
Do I still have to prove the other requirements of TDIU if I meet the “marginal employment” standard?
Yes. You must still prove the other TDIU requirements. “Marginal employment” only provides an exception to the requirement that you must demonstrate that you are not substantially gainfully employed.
However, this exception can provide great benefits to veterans who have significant difficulty working as a result of their service connected medical conditions. If you find yourself in this situation, you should consider filing for TDIU benefits.
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.
My deepest thanks to Travis Studdard, Jessica Hyatt and their team at Perkins Studdard! My odyssey with the VA began after my Marine Corps career ended and has gone on well over a decade. I initially worked on my claim myself but after 6 years, yes 6 years, of fighting with the VA, I was finally at the end of what I thought was a hopeless battle. Then I came across Perkins Studdard LLC while on Facebook and decided, what did I have to lose, so I gave them a call and had a conversation with Travis. He was very helpful, honest, and frank in his advise to me and thankfully he decided to take my case. He took a completely different strategy than the one I had been employing and with his expertise, once my case and multiple appeals had finally been settled, I received everything he promised and everything I deserved. The only thing I would have changed...I would have hired Perkins Studdard when I first intended to file a claim with the VA, rather than try to do it myself.
Thank you and Semper Fi
Rich LarsenRichard Larsen
Throughout Mr. Perkins's engagement as legal counsel, from initial contact to case resolution, the firm consistently demonstrated professionalism, responsiveness, and efficiency. His instructional materials were easily comprehensible, and both he and his staff provided clear and concise explanations at every stage. His representation was highly effective. I wholeheartedly recommend his services; he is both diligent and fair.Carol
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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.