If I Apply for Unemployability, Am I Still Able To Work?
One of the most common questions asked is, “If I apply for Individual Unemployability, am I still able to work?” Although there isn’t a concrete answer to that question, let’s focus on the VA’s choice of words: “substantially gainful employment”. Individual Unemployability can be filed as a supplementary claim for your service-connected disabilities if those disabilities prevent you from securing and maintaining substantially gainful employment. By definition, the VA will award Individual Unemployability, or payment at the 100% rate, to a working Veteran who can prove that their service-connected disability(s) prevents them from maintaining substantial employment; in other words, one must be earning under the poverty level to qualify for these benefits if they are currently employed.
Another gray area involving Individual Unemployability that you may have heard before is the term sheltered employment. Sheltered employment refers to accommodations that an employer makes to a Veteran to assist them in maintaining their occupation while making special arrangements that are not typically offered to other employees.
Is My Employment Sheltered?
As previously stated, sheltered employment is another variable to look at when deciding whether you may qualify for Individual Unemployability. When looking at your employment, first think about how your service-connected disabilities affect you, and then look at how you cope with them while you’re at work.
Do you set your own hours? If you are able to lie in bed until noon because you woke up with a migraine and then go into work later, that is considered sheltered employment. Do you work in the warehouse away from customers because your PTSD causes angry outbursts? That is also sheltered employment. Some other examples include self-employment, allowing multiple breaks throughout the day for pain management, the ability to go home early when feeling overwhelmed with anxiety, replacing physical labor with a sedentary position such as inspections or office work, or even having an employer create a unique position just for you. Ask yourself, “If I was no longer working here, would my current position be filled?” Many jobs create unique circumstances that one may not even recognize as an accommodation because they are so used to working under those relaxed conditions. That is why it is important to closely examine how you find relief from your service-connected disabilities while you’re at work, and then look to see if anyone else is receiving the same privilege. Do you feel you’d be able to maintain employment in the competitive job market? If you’re receiving special accommodations for your disabilities, chances are other employers would not be so generous.
What Do I Need to Do?
Sheltered employment can be defined as having fewer restrictions in the workplace. You are typically not working under as high of expectations as other employees. If you are planning on claiming Individual Unemployability while you are currently employed, it will be important to provide evidence concerning the accommodations that are being made for you; the VA will not pay you the 100% rate if they feel you could work in any kind of job setting. Statements from coworkers and employers describing the sheltered conditions would be very beneficial. It is not easy to obtain entitlement to Individual Unemployability while continuing to work, so be prepared to substantiate your claim with proof that you would be unable to maintain your job if not for the lower set of standards your employers provided for your service-connected disabilities. Remember, you will still need to file the VA Form 21-8940; Veteran’s Application for Increased Compensation Based on Unemployability to start your claim.
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