Military Veterans' Lawyer Blog
Veterans with a 100% disability rating may be able to work, but depending on how you were awarded the rating, there may be limitations to how much you are allowed to earn. A 100% disability rating can be reached in several ways:
- One service-related condition that is rated at 100% disability
- Several conditions that together reach the 100% disability level
- A Total and Permanent disability rating
- A Total Disability Individual Unemployability (TDIU) rating
In each of the above options, only the TDIU restricts how much you may work or how much money you can make.
Disability Ratings
Total disability ratings are awarded “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent.” (38 CFR 3.340) Since the rating is based on the “average person,” you may still be able to work, depending on your injuries or your skillset, and you would be permitted to do so, with no limit to your income.
Permanent disability is determined “when such impairment is reasonably certain to continue throughout the life of the disabled person.” (38 CFR 3.340) Examples include loss of limbs, loss of sight in both eyes, or being bedridden. Although the condition is permanent and severe, you may still find a means of employment that brings you personal satisfaction and financial gain.
Many veterans have multiple service-related conditions or secondary conditions that together may constitute 100% disability. However, two 50% disabilities do not equal 100% disability. The VA uses an unusual calculation, adding only a portion of the additional disabilities to the largest rating to come up with a total. For instance, a 30% rating for a back injury means you’re 70% healthy. If you also have a 20% rating for a knee injury, the 20% is taken from your 70% healthy rating – which would be only an additional 14% disability (70 * 20% = 14). So your total disability for 30% and 20% would not be 50%, but 44%. So generally, two or more high ratings are necessary to reach 100% disability in combination.
Unemployability Rating
While the other ratings are based on the level of disability and an average likelihood of being able to work, the TDIU is based on a specific evaluation of unemployability for the individual. With TDIU, the VA determines that the veteran’s condition, even if the scheduler rating is below 100%, is such that the veteran would be unable to maintain substantial, gainful employment. If you have received a TDIU rating, you may engage in “marginal employment,” but your income may not exceed the federal poverty threshold for one person.
An exception to this poverty-threshold rule is if the veteran is working in a “protected work environment” where the employer makes significant accommodations for the disabled vet in order to allow the vet to be able to work. “Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.” (38 CFR 4.16(a))
However, case law is not settled on the definitions of the terms “protected environment” or “sheltered workshop.” Therefore, if you have a TDIU rating and you are working, you should review your situation in detail with an experienced veterans’ attorney in order to help you make your case to the VA.
At the Law Office of Robert B. Goss, Veterans’ Attorney, we’re disabled veterans ourselves and we know what it’s like to fight with the VA to get the compensation you deserve. Call us today at 877-425-4VET (4838) to see how we can help you.