Marginal Employment
Some veterans will argue that when you have reached unemployable status, you are supposed to stay at home and sit in your house, or spend all your time at the VA. They are terrified of doing anything that could be remotely related to work, but the Code of Federal Regulations does not require a veteran to stop functioning.
4.17 Total disability ratings for pension based on unemployability.
All veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated as permanently and totally disabled. For the purpose of pension, the permanence of the percentage requirements of 4.16 is a requisite. (One disability at 60% or above, or a 70% combination of two or more, with one being at least 40%.)
When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disability. Prior employment or unemployment status is immaterial if in the judgment of the rating board the veteran's disabilities render him or her unemployable. In making such determinations, the following guidelines will be used:
(a) Marginal employment, for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration will not be considered incompatible with a determination of unemployability, if the restriction, as to securing or retaining better employment, is due to disability.
(from 4.16) Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 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. Consideration shall be given in all claims to the nature of the employment and the reason for termination.
(b) Claims of all veterans who fail to meet the percentage standards but who meet the basic entitlement criteria and are unemployable, will be referred by the rating board to the Adjudication Officer .
What all this means is that you don’t have to stop trying to earn some money when you are considered unemployable. The VA will, according to a letter I received a few weeks ago, check Social Security and IRS records on you each year when you are rated unemployable, even if self-employed. So, in theory, if you work a job involving taxes you will be hassled, if you make a ton of money. (The law doesn’t provide much incentive to improve yourself if you are declared unemployable.)
In part b above, the law states that you can file for unemployability at any percentage if you can’t work based on a service-connected condition. The VA and probably the service organizations will frown on this, but it is your right to file for unemployability if you can’t work. Don’t ley anyone tell you that you can’t file. It is the law.
(From the S-2 Report Newsletter)
