May 6, 2025 • 23 mins
Leah teams up with VA attorney Rebecca Deming of ProVet Legal to unpack a complex but crucial topic: working while rated 100% disabled by the VA. They clearly differentiate between 100% scheduler disability, which allows full-time work with no income restrictions, and TDIU (Total Disability based on Individual Unemployability), which comes with more nuanced rules around employment and income. Rebecca provides expert insight into what constitutes substantially gainful employment, sheltered work environments, and the risks of losing benefits if circumstances change. They also touch on supportive resources like Vocational Rehabilitation for veterans seeking new careers.
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Episode Transcript
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Leah Bucholz (00:07):
Guys, it's Leah B from Prestige Veteran Medical
Consulting. I am a US Armyveteran, physician assistant,
and former compensation andpension examiner. Today I have
Rebecca Deming on from ProVetLegal. She's an accredited VA
attorney, amazing human beingand veteran advocate, and we've
had her on before. And we wannatalk about working and 100% be
(00:28):
disability sort of the ins andouts of what does that mean if
you're TDIU, if you're 100%, andsome of those very common
questions that veterans havewhen they're 100%.
So Rebecca, just for those ofour viewers that don't know you,
do you wanna give a quick introabout yourself so they can get
familiarized with you?
Rebecca Deming (00:51):
Sure, my name is Rebecca Deming. I own a law firm
called ProVet Legal and wespecialize exclusively in VA
disability benefits and appeals.And I'm the wife of a Navy
veteran. And I have spent a longtime before I got into VA
disability working in policy andkind of training with military.
(01:13):
Actually met my husband inAfghanistan.
So I am not a veteran myself,but I have spent a lot of time
with service members andunderstand a lot of the stuff
that you guys are exposed to andthe stuff that you guys have
gone through. Happy to be here,thanks for having me, Leah.
Leah Bucholz (01:31):
Yes, thank you for joining us again. It's always a
pleasure to have you on and Iknow the viewers have given us a
lot of positive feedback aboutyour insights because there's
just so much that goes aroundand there's a lot of information
out there, but it's hard todetermine what is relevant, what
is legit, da.gov has a lot ofgreat help docs out there that
(01:53):
we've gone over that give someinformation, but I'm interested
to see some of your insights. SoI'm gonna just start off with
some of the most frequentquestions that we get about
this, and the first one is, canyou explain what total
disability means in the contextof VA claims?
Rebecca Deming (02:10):
Sure. So total disability or 100% disability
means that the veteran iscombined at 100% disabled. It
could be one condition that VAconsiders totally disabling, or
it could be a number ofconditions. And we did another
podcast together a while backthat talks about how VA combines
(02:32):
ratings. It's not a straightaddition.
It's not like 50 plus 50 equals100. They use a complex formula.
And when you plug in yourratings into that formula, if
those, I don't want say add up,but combine up to be 100%, then
you get rated 100% disabled. Iknow there's a lot of, there's
kind of some misconceptions outthere. People have it in their
(02:52):
head that if you're 100%disabled vet, that you must be
an amputee or you must be in awheelchair or be in a padded
room or, you know, like theyhave this vision of what a 100%
totally disabled veteran is.
And that's really not the casebecause VA has different ways of
rating multiple differentconditions. A lot of the
(03:14):
veterans can be prettyfunctional in different aspects
of their lives. They're justdealing with some visible and
some invisible disabilities andinjuries. So the main way to get
there is if your conditionscombine to 100%. But there is
another way, and people oftenconfuse these, which is called
total disability based onindividual unemployability or
(03:37):
TDIU.
And that's where you don't meetthat 100% criteria. Conditions
don't add up or combine up to100%, but because of your
conditions, you're unable to,essentially you're unable to
work, but we'll talk more aboutthat. There's some nuance into
what it means to be able tosecure and maintain
(03:58):
substantially gainfulemployment. But if your
disabilities prevent you fromreally holding down a steady
job, then VA will often pay youat the 100% level even if your
conditions don't combine.
Leah Bucholz (04:11):
Okay, so I know that can get kind of tricky too
and I'm sure we're gonna getinto that. So when we're talking
about veterans with 100%disability ratings, can you
break down a little bit moreabout whether they can work or
not? Like you mentioned thescheduler, can you talk a little
bit more about that?
Rebecca Deming (04:30):
Yes, so if your conditions combined to 100%, so
the way the VA does the math andyou have enough that you're 95
or more and it rounds up to 100,you can work, you could be the
CEO of a Fortune 500 company.Currently there are no income
limitations. There's alwayspolitical talk about changing
the regulations, but there areno income limits on your ability
(04:51):
to get disability pay and beable to work. So you can
certainly do both. Now, ifyou're only rated 100% or total
disability based on TDIU, based
Leah Bucholz (05:03):
on
Rebecca Deming (05:03):
unemployability, then there's a little more
nuance into it. And it's not asstraightforward as it seems. A
lot of times veterans will askme, well, I'm getting 100% based
on TDIU. Can I work? And Ialways say, well, that's not for
me to say, and that's not for VAto say whether you can work or
(05:25):
not.
I mean, you're getting itbecause you've presented to VA
that you can't work or that youcan't maintain substantially
gainful employment. So if yourconditions change and you're
able to work, then that's great.I always do encourage my clients
that if they can work, theyshould. VA can't tell you you
can't work. They can't call youremployer and say he's not able
(05:45):
to work, she's not able to work.
But if your conditions changeand you are able to work, then
you should probably let VA know.Although I would give it some
time because the regulation saysyou have to be able to secure
and maintain. So you have toable to get a job. You have to
able to get through theinterview process and somebody
has to want to hire you. Butthen you have to be able to keep
(06:06):
that job.
And so we have a lot of peoplebecause of their mental
disabilities or because of theirphysical disabilities, they get
fired from jobs, they lose theirtemper and they quit jobs after
a couple of weeks. And so ifyou're chronically, job hunting
or job hopping, I should say,that's not substantially, that's
not maintaining substantiallygainful employment. So you might
(06:27):
be employed for most of theyear, but you've had 10
employers in the past year. Youmight have had two employers in
the past year, but you're justconstantly switching jobs
because of your disabilities,then that's something that's
going be a little bit morenuanced. And VA is going look at
it.
They're going to see the waythat VA evaluates you, they
communicate with the SocialSecurity Administration. So
(06:49):
they'll get your Social Securityearnings statements. If they see
that you're making above thepoverty level, then they'll
reevaluate you and they'll sendyou a letter saying we're
proposing to sever, but send usevidence if you think that this
proposal is incorrect. And atthat point, it would really
benefit somebody cause it is sonuanced. It would benefit
somebody to work with anaccredited claims agent or an
(07:11):
accredited attorney or somebodyto look at whether you fit into
one of those categories of aprotected work environment or
marginal employment that wouldallow you to keep receiving TDIU
even though you're earning abovethe poverty line.
Leah Bucholz (07:29):
Sure, so it's interesting, I just had a
thought while you were talkingabout that, is that many
veterans probably don't evenknow this, but as you mentioned,
veterans that are 100%scheduler, they could be working
in any capacity, they could bethe CEO of a Fortune 500
company, etcetera. Veterans canactually still serve in like the
reserve or National Guardcomponent at 100% disability as
(07:51):
well. So as a PA, I've worked inboth active component and the
reserve component, and I havehad many patients that are still
serving in the military that are100% disabled. Now, I don't
wanna get too in the weeds onthat, but I'm just showing this
as a parallel that you can stillfunction in many capacities. You
can even deploy in a combat zonewith 100% VA disability so long
(08:16):
as your disabilities are withina specific framework that don't
make you non deployable.
But that's a whole anotherissue. But just showing again
that being 100% disabled doesnot necessarily mean that you're
just incapacitated and unable todo job functions. So again, I
(08:37):
guess the bottom line betweenthe difference between scheduler
100% VA disability and TDIU, ifyou had to give a one liner for
that, what would you say thebiggest important and part of
those differences are?
Rebecca Deming (08:54):
I would say the biggest difference is that TDIU
is sort of a gap fill and it'sto compensate people who are
unable to work or who aresignificantly impaired in their
economic endeavors because ofservice connected disabilities
if they don't meet the otherwiseschedule or rating criteria for
100%.
Leah Bucholz (09:14):
Makes sense. What are the implications of working
if you're a DIU? So what happensif What happens if you do?
Rebecca Deming (09:21):
Yeah, good question. So if you do start
working, that's fine. Iencourage people to try to work
if they can. And it is apersonal it's a nuanced issue
because there's physical andthere's mental impact of holding
down jobs. Especially if you'redealing with some pretty severe
mental health disabilities,sometimes like, could you show
(09:43):
up to the job?
Yes. But after a while it startsto wear on you and on your
family and it causes a lot ofother issues. So it's a
decision, but a lot of peopleare not able to continue
working. If you decide to startworking, you should keep good
records of when you startedworking, but there's a few
exceptions. So if you're not,like I mentioned earlier, if if
(10:06):
you're not able to maintain thatjob for a while, then VA doesn't
consider that substantiallygainful.
Consider it marginal employmentif you're not able to keep the
job for a while. There's also asheltered work environment. And
so a lot of veterans get hiredby companies that have special
programs that make specialaccommodations, like above and
(10:26):
beyond the regular ADAaccommodations for veterans. Or
it might be a family company.It's like, well, we know that
she doesn't really show up towork all the time and she calls
out sick because of hermigraines or can't lift heavy
stuff, even though that's amajor part of the job, but she's
our sister.
So we're going to hire her andkeep paying her. So if it's a
sheltered work environment andthat's a very nuanced, case very
(10:50):
law around what constitutessheltered and what doesn't, that
would be something where if VAsaid, Hey, you're working,
proposing to sever TDIU, you'dwant to reach out and contact an
accredited claims agent or anaccredited attorney to determine
whether your work was shelteredor not. But yeah, they will
start severing it after about ayear if they see that They will
(11:12):
propose to start severing itafter about a year if they see
that you're working and earningabove the poverty line.
Leah Bucholz (11:19):
Can they like claw back some of the disability
payments too? If you've, let'ssay they catch it a year or two
later, will they pull back? Iknow that might be a case by
case situation.
Rebecca Deming (11:32):
It's a case by case situation. Assuming there's
no fraud, they won't pull itback. Usually they'll say, yeah,
we're severing it from thestate, but we're only gonna stop
paying you prospectively. I haveseen some cases where they'll
allege someone is fraudulentlyclaiming TDIU. I think it's
(11:55):
pretty rare for one.
I think most people don't needto worry about that. But if your
circumstances do change andyou're able to get a great job
and keep that job for more thana year, then it probably would
be in your interest. I know it'shard to say turn down money, but
if you really don't qualify forTDIU anymore, then it probably
(12:16):
is in your interest. I'm seeinga trend where VA rightfully or
wrongfully is putting thatburden on the veteran to kind of
self report that theircircumstances have changed.
Leah Bucholz (12:31):
Sure. What about part time work?
Rebecca Deming (12:37):
Part time work, there's no fine line or line in
the sand where it's, oh, it'spart time, you're fine. If you
do part time work, but you're anattorney and you're making
decent money or, you know,you're a physician assistant or
a doctor, but you're onlyworking a few days a week, it's
really the income level and thenwhether it's a sheltered work
(12:58):
environment and whether you'remaintaining that position for a
long period of time. You know,if you're mowing your neighbor's
lawn for cash and you're notreporting it to the Social
Security Administration, youshould report all of your income
to the Social SecurityAdministration because that is
the law. But, you know, if VAhas no way of knowing all of if
(13:18):
you're babysitting on the side,if you're getting tips for
bartending your neighbor's partyor something, there are certain
things that aren't reported. VAis not going to have any way of
knowing that you've got thatmoney.
If you're earning can you talkto a tax expert on on what to
report and what not to report?But, yeah, it's not like, oh,
(13:42):
well, I'm only working fortyhour I'm only working twenty
hours a week, so therefore, itdoesn't qualify as substantially
gainful.
Leah Bucholz (13:51):
But there are some circumstances essentially that
if you are working over thatpoverty level, if it can be
considered sheltered based onyour unique situation, there's
this kind of window of, well,you're over that threshold, but
it is still sheltered, so youmay still qualify and it's just
case by case, as you mentioned,and best to follow-up with an
(14:13):
accredited attorney or claimsagent to help you determine if
you fall into those areas.Exactly. That's interesting. I
did not know that. So whatshould a veteran consider before
deciding return to work whilerated totally disabled?
And I know you kind of touchedon that, but are there any other
(14:34):
factors that you would reallyconsider or tell a veteran to
help with? I
Rebecca Deming (14:42):
mean, I'm not an employment attorney. I know
there are a lot of veterans thatask, well, am I going to have to
report this disability to myemployer? And if you need an
accommodation, then you probablydo want to report it to your
employer. They might just thinkthat you're not able to keep
working. But if you have adisability, there's the ADA, the
(15:05):
Americans with Disabilities Act,that protects workers that have
disabilities.
So you might consider sharinginformation. I know it's
different if certainprofessions, like if you're a
pilot, the FAA regulates it.Again, if you have a disability
that's diagnosed and you'regetting benefits for and you're
(15:25):
not reporting it to a federallyregulated employer, you're
probably getting yourself intosome hot water there. So you
might consider disclosing yourdisability to your employer.
That's between you, youremployment lawyer, and your
employer.
Otherwise, if you're 100% basedon scheduler, I wouldn't say
(15:47):
there's anything that you needto consider about going back to
work. If you're 100% based onTDIU, I think you want to kind
of consider, is this somethingthat you think you're likely
going to be able to maintainwithout having a significant
negative impact on the rest ofyour life? I've seen people try
to go back to work because theyreally do want to be productive
(16:07):
members of society and thentheir marriages fall apart
because it's causing such astressor on their mental health
and it's impacting their livesin other ways. And so I think
it's really a personal decisionto talk with your therapist,
talk with your doctors, talkwith your spouse, if you have
one, to figure out whether youwant to get back into the
(16:29):
workforce. And if it's somethingthat you're likely going to
maintain, I mean, is it worth itto you?
And this really, it's a personaldecision. It's more, you know,
I'm giving practical guidancefrom the people I've worked with
and less than legal guidanceright now. But is it worth it to
you to trigger VA to potentiallylook into your benefits if
you're pretty sure that you'reonly going to do this for a few
(16:52):
months and it's probably notgoing to work out or it's going
to have major negative impact onyour life. And then if you do
get back to work and you try itout, dip your toes in the water,
so to speak, and it works outwell, then there's that
question. It's a gray line, doyou have a duty to report to VA
(17:13):
that you've been working?
And VA is pulling the SocialSecurity earnings statements, so
they should be able to see it.But I think VA has been moving
more in the direction of theywould like you to report that
you now have substantial gainfulemployment. Does the veteran
need to know whether it'ssheltered or not? Mean, there's
definitely some gray area therestill.
Leah Bucholz (17:34):
Sure. There's just so much about individual
unemployability that I think wecould touch on, and maybe we'll
save that for another video, butjust what qualifies somebody?
Because I know there's thetraditional, hey, you've gotta
have these different percentagesto be IU and then there's this
extra scheduler way to get IU aswell. We could probably do a
(17:55):
whole entire another video onthat. I don't know if you have
any comments on that orthoughts.
Rebecca Deming (18:01):
Yeah, mean, can definitely So when you mentioned
the scheduler and the extrascheduler TDIU, I'll just touch
on it really quickly and we cancertainly do another video if
people are interested in themath. But typically for the
regular VA adjudicator to beable to grant you TDIU, you have
to either have one conditionrated 60% disabling or more, or
(18:22):
you have to be combined at least70% with one condition rated 40%
or more. There's some complexways. And if you have a back
condition at 20 and you've gotbilateral radiculopathy from the
back, be able to sometimesconsider that a single
disability. So there's somenuance into how they determine
whether you meet thoserequirements.
If you meet those requirements,then the regular VA rater can
(18:44):
consider whether you meetunemployability. If you're below
that, but there's kind ofextraordinary circumstances that
prevent you from working becauseof your training and your
education and the type ofdisability you have, then VA has
to send that off to the directorof compensation in Washington,
DC with a memorandum and theyget an opinion back about
(19:04):
whether you should still getunemployability. So we've had
it's rare, but we have had somecases where someone is rated 40%
combined. They don't meet thescheduler requirements for TDIU,
but they're totally deaf andtheir education was as a
professor or something. There'sjust no accommodations.
(19:26):
They're not able to take onother jobs. So even though
they're only 40% disabled,they're not able to work. And VA
has determined, we've shown thatthey're unemployable. And so VA
will grant extra schedulerunemployability because of that.
Leah Bucholz (19:38):
Sure, or, you know, one that I'm thinking of
right now is you mentionedpilots, right? Like, you know, I
know from my experience in themilitary being a flight PA, it's
not exactly the same as the FAA,but a lot of the same
requirements. They're verystrict because you're dealing
with people's lives when you'reup in the air. Let's say
somebody's a pilot and they'vegot really severe vertigo. Maybe
(19:59):
they're 40% for vertigo and theyjust can't get a FAA waiver.
That might be another example ofdue to their training, but to no
fault of their own, they're notmeeting that minimum threshold,
but they can't perform in thecapacity of their occupation. So
it's good to know that VA hasthese extra scheduler ways to
(20:19):
sort of help individuals inthose circumstances. But are
there any other programs thatyou can think of to support
veterans that are wanting towork while they are disabled?
Rebecca Deming (20:32):
There is the Vocational Rehabilitation and
Education program, and I'm notas well versed in it. I mean,
it's not the area of law that wepractice in our firm, but I've
had a lot of clients go throughwonderful program because if you
qualify for it, so like yousaid, let's say that you're a
pilot, but because of yourmedications you're taking or
(20:53):
something, you can't perform theduties in the air. They're
afraid you're going to pass outin the air or something's going
to happen. If you determine withthe Voc Rehab folks, if you get
accepted into the program anddetermine that you want to go to
school to become an accountant,they'll pay for this. I mean,
it's almost like the GI bill orChapter 35 benefits.
(21:15):
I mean, they'll pay asignificant amount of money to
get you educated and trained upin a new area. It's a really
wonderful program. Now, if yougo through that, sometimes some
of the determinations from thevoc rehab folks can either help
or hurt your claim forunemployability. So there might
(21:36):
be people who have gottenunemployability and they're
like, well, now that stuff'sgotten better and my kids are
out of the house or something'schanged in my life, I feel like
I have the ability to focus onsomething else. So if your
circumstances change, I wouldsuggest looking into the Voc
Rehab program, but justunderstand that it might impact
your continued entitlement toTDIU if you've already been
(21:57):
awarded.
Leah Bucholz (21:58):
Yeah, voc rehab is really cool. I have a family
member that did it and it helpedhim tremendously. And he was
able to go back to school andget some type of certificate for
like computer, I don't wannacall it computer engineering,
but it's some type of computerjob. And he's doing really well,
it was a great program. Theygave him BAH while he was in it,
(22:21):
or some kind of housing stipend.
They paid for his school to makeit affordable for him. But there
was like a process, you know,where it had the application had
to be reviewed and approved, andthey wanna make sure you're you
know, this is an investmentthey're gonna make within you
that you're gonna be successfulat. So, you know, do you have a
lot of red flags? I don't knowall the criteria they look at
(22:43):
and maybe we'll get someone whospecializes in that area on
sometime. But they do look atlike, are you gonna be someone
who's gonna be responsible andgoing or different things like
that.
So thank you very much fortouching on all of these things.
I know there are a lot ofquestions people have about IU,
so if you guys have somequestions, please drop them in
(23:04):
the comments. Also I'm gonna puta link up to Rebecca's website
at ProVet Legal. If you have anyquestions regarding IU or just
legal questions in general aboutyour case. She's got a great
team over there that helps ourveteran community kind of get
through some of the red tapethat they've been facing on
their claims.
(23:24):
Thanks for hanging out, Rebecca.Do you have any last words?
Rebecca Deming (23:30):
I could talk about this all day long but I
won't keep you guys. We can doanother video. Thank you so much
for having me, Leah. All
Leah Bucholz (23:37):
right, all right. Well thanks guys for watching
and we'll talk
Rebecca Deming (23:39):
to you all soon.
Guys, it's Leah B from Prestige Veteran Medical
Consulting. I am a US Armyveteran, physician assistant,
and former compensation andpension examiner. Today I have
Rebecca Deming on from ProVetLegal. She's an accredited VA
attorney, amazing human beingand veteran advocate, and we've
had her on before. And we wannatalk about working and 100% be
(00:28):
disability sort of the ins andouts of what does that mean if
you're TDIU, if you're 100%, andsome of those very common
questions that veterans havewhen they're 100%.
So Rebecca, just for those ofour viewers that don't know you,
do you wanna give a quick introabout yourself so they can get
familiarized with you?
Rebecca Deming (00:51):
Sure, my name is Rebecca Deming. I own a law firm
called ProVet Legal and wespecialize exclusively in VA
disability benefits and appeals.And I'm the wife of a Navy
veteran. And I have spent a longtime before I got into VA
disability working in policy andkind of training with military.
(01:13):
Actually met my husband inAfghanistan.
So I am not a veteran myself,but I have spent a lot of time
with service members andunderstand a lot of the stuff
that you guys are exposed to andthe stuff that you guys have
gone through. Happy to be here,thanks for having me, Leah.
Leah Bucholz (01:31):
Yes, thank you for joining us again. It's always a
pleasure to have you on and Iknow the viewers have given us a
lot of positive feedback aboutyour insights because there's
just so much that goes aroundand there's a lot of information
out there, but it's hard todetermine what is relevant, what
is legit, da.gov has a lot ofgreat help docs out there that
(01:53):
we've gone over that give someinformation, but I'm interested
to see some of your insights. SoI'm gonna just start off with
some of the most frequentquestions that we get about
this, and the first one is, canyou explain what total
disability means in the contextof VA claims?
Rebecca Deming (02:10):
Sure. So total disability or 100% disability
means that the veteran iscombined at 100% disabled. It
could be one condition that VAconsiders totally disabling, or
it could be a number ofconditions. And we did another
podcast together a while backthat talks about how VA combines
(02:32):
ratings. It's not a straightaddition.
It's not like 50 plus 50 equals100. They use a complex formula.
And when you plug in yourratings into that formula, if
those, I don't want say add up,but combine up to be 100%, then
you get rated 100% disabled. Iknow there's a lot of, there's
kind of some misconceptions outthere. People have it in their
(02:52):
head that if you're 100%disabled vet, that you must be
an amputee or you must be in awheelchair or be in a padded
room or, you know, like theyhave this vision of what a 100%
totally disabled veteran is.
And that's really not the casebecause VA has different ways of
rating multiple differentconditions. A lot of the
(03:14):
veterans can be prettyfunctional in different aspects
of their lives. They're justdealing with some visible and
some invisible disabilities andinjuries. So the main way to get
there is if your conditionscombine to 100%. But there is
another way, and people oftenconfuse these, which is called
total disability based onindividual unemployability or
(03:37):
TDIU.
And that's where you don't meetthat 100% criteria. Conditions
don't add up or combine up to100%, but because of your
conditions, you're unable to,essentially you're unable to
work, but we'll talk more aboutthat. There's some nuance into
what it means to be able tosecure and maintain
(03:58):
substantially gainfulemployment. But if your
disabilities prevent you fromreally holding down a steady
job, then VA will often pay youat the 100% level even if your
conditions don't combine.
Leah Bucholz (04:11):
Okay, so I know that can get kind of tricky too
and I'm sure we're gonna getinto that. So when we're talking
about veterans with 100%disability ratings, can you
break down a little bit moreabout whether they can work or
not? Like you mentioned thescheduler, can you talk a little
bit more about that?
Rebecca Deming (04:30):
Yes, so if your conditions combined to 100%, so
the way the VA does the math andyou have enough that you're 95
or more and it rounds up to 100,you can work, you could be the
CEO of a Fortune 500 company.Currently there are no income
limitations. There's alwayspolitical talk about changing
the regulations, but there areno income limits on your ability
(04:51):
to get disability pay and beable to work. So you can
certainly do both. Now, ifyou're only rated 100% or total
disability based on TDIU, based
Leah Bucholz (05:03):
on
Rebecca Deming (05:03):
unemployability, then there's a little more
nuance into it. And it's not asstraightforward as it seems. A
lot of times veterans will askme, well, I'm getting 100% based
on TDIU. Can I work? And Ialways say, well, that's not for
me to say, and that's not for VAto say whether you can work or
(05:25):
not.
I mean, you're getting itbecause you've presented to VA
that you can't work or that youcan't maintain substantially
gainful employment. So if yourconditions change and you're
able to work, then that's great.I always do encourage my clients
that if they can work, theyshould. VA can't tell you you
can't work. They can't call youremployer and say he's not able
(05:45):
to work, she's not able to work.
But if your conditions changeand you are able to work, then
you should probably let VA know.Although I would give it some
time because the regulation saysyou have to be able to secure
and maintain. So you have toable to get a job. You have to
able to get through theinterview process and somebody
has to want to hire you. Butthen you have to be able to keep
(06:06):
that job.
And so we have a lot of peoplebecause of their mental
disabilities or because of theirphysical disabilities, they get
fired from jobs, they lose theirtemper and they quit jobs after
a couple of weeks. And so ifyou're chronically, job hunting
or job hopping, I should say,that's not substantially, that's
not maintaining substantiallygainful employment. So you might
(06:27):
be employed for most of theyear, but you've had 10
employers in the past year. Youmight have had two employers in
the past year, but you're justconstantly switching jobs
because of your disabilities,then that's something that's
going be a little bit morenuanced. And VA is going look at
it.
They're going to see the waythat VA evaluates you, they
communicate with the SocialSecurity Administration. So
(06:49):
they'll get your Social Securityearnings statements. If they see
that you're making above thepoverty level, then they'll
reevaluate you and they'll sendyou a letter saying we're
proposing to sever, but send usevidence if you think that this
proposal is incorrect. And atthat point, it would really
benefit somebody cause it is sonuanced. It would benefit
somebody to work with anaccredited claims agent or an
(07:11):
accredited attorney or somebodyto look at whether you fit into
one of those categories of aprotected work environment or
marginal employment that wouldallow you to keep receiving TDIU
even though you're earning abovethe poverty line.
Leah Bucholz (07:29):
Sure, so it's interesting, I just had a
thought while you were talkingabout that, is that many
veterans probably don't evenknow this, but as you mentioned,
veterans that are 100%scheduler, they could be working
in any capacity, they could bethe CEO of a Fortune 500
company, etcetera. Veterans canactually still serve in like the
reserve or National Guardcomponent at 100% disability as
(07:51):
well. So as a PA, I've worked inboth active component and the
reserve component, and I havehad many patients that are still
serving in the military that are100% disabled. Now, I don't
wanna get too in the weeds onthat, but I'm just showing this
as a parallel that you can stillfunction in many capacities. You
can even deploy in a combat zonewith 100% VA disability so long
(08:16):
as your disabilities are withina specific framework that don't
make you non deployable.
But that's a whole anotherissue. But just showing again
that being 100% disabled doesnot necessarily mean that you're
just incapacitated and unable todo job functions. So again, I
(08:37):
guess the bottom line betweenthe difference between scheduler
100% VA disability and TDIU, ifyou had to give a one liner for
that, what would you say thebiggest important and part of
those differences are?
Rebecca Deming (08:54):
I would say the biggest difference is that TDIU
is sort of a gap fill and it'sto compensate people who are
unable to work or who aresignificantly impaired in their
economic endeavors because ofservice connected disabilities
if they don't meet the otherwiseschedule or rating criteria for
100%.
Leah Bucholz (09:14):
Makes sense. What are the implications of working
if you're a DIU? So what happensif What happens if you do?
Rebecca Deming (09:21):
Yeah, good question. So if you do start
working, that's fine. Iencourage people to try to work
if they can. And it is apersonal it's a nuanced issue
because there's physical andthere's mental impact of holding
down jobs. Especially if you'redealing with some pretty severe
mental health disabilities,sometimes like, could you show
(09:43):
up to the job?
Yes. But after a while it startsto wear on you and on your
family and it causes a lot ofother issues. So it's a
decision, but a lot of peopleare not able to continue
working. If you decide to startworking, you should keep good
records of when you startedworking, but there's a few
exceptions. So if you're not,like I mentioned earlier, if if
(10:06):
you're not able to maintain thatjob for a while, then VA doesn't
consider that substantiallygainful.
Consider it marginal employmentif you're not able to keep the
job for a while. There's also asheltered work environment. And
so a lot of veterans get hiredby companies that have special
programs that make specialaccommodations, like above and
(10:26):
beyond the regular ADAaccommodations for veterans. Or
it might be a family company.It's like, well, we know that
she doesn't really show up towork all the time and she calls
out sick because of hermigraines or can't lift heavy
stuff, even though that's amajor part of the job, but she's
our sister.
So we're going to hire her andkeep paying her. So if it's a
sheltered work environment andthat's a very nuanced, case very
(10:50):
law around what constitutessheltered and what doesn't, that
would be something where if VAsaid, Hey, you're working,
proposing to sever TDIU, you'dwant to reach out and contact an
accredited claims agent or anaccredited attorney to determine
whether your work was shelteredor not. But yeah, they will
start severing it after about ayear if they see that They will
(11:12):
propose to start severing itafter about a year if they see
that you're working and earningabove the poverty line.
Leah Bucholz (11:19):
Can they like claw back some of the disability
payments too? If you've, let'ssay they catch it a year or two
later, will they pull back? Iknow that might be a case by
case situation.
Rebecca Deming (11:32):
It's a case by case situation. Assuming there's
no fraud, they won't pull itback. Usually they'll say, yeah,
we're severing it from thestate, but we're only gonna stop
paying you prospectively. I haveseen some cases where they'll
allege someone is fraudulentlyclaiming TDIU. I think it's
(11:55):
pretty rare for one.
I think most people don't needto worry about that. But if your
circumstances do change andyou're able to get a great job
and keep that job for more thana year, then it probably would
be in your interest. I know it'shard to say turn down money, but
if you really don't qualify forTDIU anymore, then it probably
(12:16):
is in your interest. I'm seeinga trend where VA rightfully or
wrongfully is putting thatburden on the veteran to kind of
self report that theircircumstances have changed.
Leah Bucholz (12:31):
Sure. What about part time work?
Rebecca Deming (12:37):
Part time work, there's no fine line or line in
the sand where it's, oh, it'spart time, you're fine. If you
do part time work, but you're anattorney and you're making
decent money or, you know,you're a physician assistant or
a doctor, but you're onlyworking a few days a week, it's
really the income level and thenwhether it's a sheltered work
(12:58):
environment and whether you'remaintaining that position for a
long period of time. You know,if you're mowing your neighbor's
lawn for cash and you're notreporting it to the Social
Security Administration, youshould report all of your income
to the Social SecurityAdministration because that is
the law. But, you know, if VAhas no way of knowing all of if
(13:18):
you're babysitting on the side,if you're getting tips for
bartending your neighbor's partyor something, there are certain
things that aren't reported. VAis not going to have any way of
knowing that you've got thatmoney.
If you're earning can you talkto a tax expert on on what to
report and what not to report?But, yeah, it's not like, oh,
(13:42):
well, I'm only working fortyhour I'm only working twenty
hours a week, so therefore, itdoesn't qualify as substantially
gainful.
Leah Bucholz (13:51):
But there are some circumstances essentially that
if you are working over thatpoverty level, if it can be
considered sheltered based onyour unique situation, there's
this kind of window of, well,you're over that threshold, but
it is still sheltered, so youmay still qualify and it's just
case by case, as you mentioned,and best to follow-up with an
(14:13):
accredited attorney or claimsagent to help you determine if
you fall into those areas.Exactly. That's interesting. I
did not know that. So whatshould a veteran consider before
deciding return to work whilerated totally disabled?
And I know you kind of touchedon that, but are there any other
(14:34):
factors that you would reallyconsider or tell a veteran to
help with? I
Rebecca Deming (14:42):
mean, I'm not an employment attorney. I know
there are a lot of veterans thatask, well, am I going to have to
report this disability to myemployer? And if you need an
accommodation, then you probablydo want to report it to your
employer. They might just thinkthat you're not able to keep
working. But if you have adisability, there's the ADA, the
(15:05):
Americans with Disabilities Act,that protects workers that have
disabilities.
So you might consider sharinginformation. I know it's
different if certainprofessions, like if you're a
pilot, the FAA regulates it.Again, if you have a disability
that's diagnosed and you'regetting benefits for and you're
(15:25):
not reporting it to a federallyregulated employer, you're
probably getting yourself intosome hot water there. So you
might consider disclosing yourdisability to your employer.
That's between you, youremployment lawyer, and your
employer.
Otherwise, if you're 100% basedon scheduler, I wouldn't say
(15:47):
there's anything that you needto consider about going back to
work. If you're 100% based onTDIU, I think you want to kind
of consider, is this somethingthat you think you're likely
going to be able to maintainwithout having a significant
negative impact on the rest ofyour life? I've seen people try
to go back to work because theyreally do want to be productive
(16:07):
members of society and thentheir marriages fall apart
because it's causing such astressor on their mental health
and it's impacting their livesin other ways. And so I think
it's really a personal decisionto talk with your therapist,
talk with your doctors, talkwith your spouse, if you have
one, to figure out whether youwant to get back into the
(16:29):
workforce. And if it's somethingthat you're likely going to
maintain, I mean, is it worth itto you?
And this really, it's a personaldecision. It's more, you know,
I'm giving practical guidancefrom the people I've worked with
and less than legal guidanceright now. But is it worth it to
you to trigger VA to potentiallylook into your benefits if
you're pretty sure that you'reonly going to do this for a few
(16:52):
months and it's probably notgoing to work out or it's going
to have major negative impact onyour life. And then if you do
get back to work and you try itout, dip your toes in the water,
so to speak, and it works outwell, then there's that
question. It's a gray line, doyou have a duty to report to VA
(17:13):
that you've been working?
And VA is pulling the SocialSecurity earnings statements, so
they should be able to see it.But I think VA has been moving
more in the direction of theywould like you to report that
you now have substantial gainfulemployment. Does the veteran
need to know whether it'ssheltered or not? Mean, there's
definitely some gray area therestill.
Leah Bucholz (17:34):
Sure. There's just so much about individual
unemployability that I think wecould touch on, and maybe we'll
save that for another video, butjust what qualifies somebody?
Because I know there's thetraditional, hey, you've gotta
have these different percentagesto be IU and then there's this
extra scheduler way to get IU aswell. We could probably do a
(17:55):
whole entire another video onthat. I don't know if you have
any comments on that orthoughts.
Rebecca Deming (18:01):
Yeah, mean, can definitely So when you mentioned
the scheduler and the extrascheduler TDIU, I'll just touch
on it really quickly and we cancertainly do another video if
people are interested in themath. But typically for the
regular VA adjudicator to beable to grant you TDIU, you have
to either have one conditionrated 60% disabling or more, or
(18:22):
you have to be combined at least70% with one condition rated 40%
or more. There's some complexways. And if you have a back
condition at 20 and you've gotbilateral radiculopathy from the
back, be able to sometimesconsider that a single
disability. So there's somenuance into how they determine
whether you meet thoserequirements.
If you meet those requirements,then the regular VA rater can
(18:44):
consider whether you meetunemployability. If you're below
that, but there's kind ofextraordinary circumstances that
prevent you from working becauseof your training and your
education and the type ofdisability you have, then VA has
to send that off to the directorof compensation in Washington,
DC with a memorandum and theyget an opinion back about
(19:04):
whether you should still getunemployability. So we've had
it's rare, but we have had somecases where someone is rated 40%
combined. They don't meet thescheduler requirements for TDIU,
but they're totally deaf andtheir education was as a
professor or something. There'sjust no accommodations.
(19:26):
They're not able to take onother jobs. So even though
they're only 40% disabled,they're not able to work. And VA
has determined, we've shown thatthey're unemployable. And so VA
will grant extra schedulerunemployability because of that.
Leah Bucholz (19:38):
Sure, or, you know, one that I'm thinking of
right now is you mentionedpilots, right? Like, you know, I
know from my experience in themilitary being a flight PA, it's
not exactly the same as the FAA,but a lot of the same
requirements. They're verystrict because you're dealing
with people's lives when you'reup in the air. Let's say
somebody's a pilot and they'vegot really severe vertigo. Maybe
(19:59):
they're 40% for vertigo and theyjust can't get a FAA waiver.
That might be another example ofdue to their training, but to no
fault of their own, they're notmeeting that minimum threshold,
but they can't perform in thecapacity of their occupation. So
it's good to know that VA hasthese extra scheduler ways to
(20:19):
sort of help individuals inthose circumstances. But are
there any other programs thatyou can think of to support
veterans that are wanting towork while they are disabled?
Rebecca Deming (20:32):
There is the Vocational Rehabilitation and
Education program, and I'm notas well versed in it. I mean,
it's not the area of law that wepractice in our firm, but I've
had a lot of clients go throughwonderful program because if you
qualify for it, so like yousaid, let's say that you're a
pilot, but because of yourmedications you're taking or
(20:53):
something, you can't perform theduties in the air. They're
afraid you're going to pass outin the air or something's going
to happen. If you determine withthe Voc Rehab folks, if you get
accepted into the program anddetermine that you want to go to
school to become an accountant,they'll pay for this. I mean,
it's almost like the GI bill orChapter 35 benefits.
(21:15):
I mean, they'll pay asignificant amount of money to
get you educated and trained upin a new area. It's a really
wonderful program. Now, if yougo through that, sometimes some
of the determinations from thevoc rehab folks can either help
or hurt your claim forunemployability. So there might
(21:36):
be people who have gottenunemployability and they're
like, well, now that stuff'sgotten better and my kids are
out of the house or something'schanged in my life, I feel like
I have the ability to focus onsomething else. So if your
circumstances change, I wouldsuggest looking into the Voc
Rehab program, but justunderstand that it might impact
your continued entitlement toTDIU if you've already been
(21:57):
awarded.
Leah Bucholz (21:58):
Yeah, voc rehab is really cool. I have a family
member that did it and it helpedhim tremendously. And he was
able to go back to school andget some type of certificate for
like computer, I don't wannacall it computer engineering,
but it's some type of computerjob. And he's doing really well,
it was a great program. Theygave him BAH while he was in it,
(22:21):
or some kind of housing stipend.
They paid for his school to makeit affordable for him. But there
was like a process, you know,where it had the application had
to be reviewed and approved, andthey wanna make sure you're you
know, this is an investmentthey're gonna make within you
that you're gonna be successfulat. So, you know, do you have a
lot of red flags? I don't knowall the criteria they look at
(22:43):
and maybe we'll get someone whospecializes in that area on
sometime. But they do look atlike, are you gonna be someone
who's gonna be responsible andgoing or different things like
that.
So thank you very much fortouching on all of these things.
I know there are a lot ofquestions people have about IU,
so if you guys have somequestions, please drop them in
(23:04):
the comments. Also I'm gonna puta link up to Rebecca's website
at ProVet Legal. If you have anyquestions regarding IU or just
legal questions in general aboutyour case. She's got a great
team over there that helps ourveteran community kind of get
through some of the red tapethat they've been facing on
their claims.
(23:24):
Thanks for hanging out, Rebecca.Do you have any last words?
Rebecca Deming (23:30):
I could talk about this all day long but I
won't keep you guys. We can doanother video. Thank you so much
for having me, Leah. All
Leah Bucholz (23:37):
right, all right. Well thanks guys for watching
and we'll talk
Rebecca Deming (23:39):
to you all soon.
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