Question:
I am currently using Family Medical Leave Act to protect my job. I have been limited to three days a week by my VA doctor because of PTSD issues. I have filed for TDIU with the VA. Am I considered to be in “Sheltered Employment” and if so, is this an exception to the unemployment requirement for TDIU?
Answer:
You have raised a very interesting question.
The fact that you have a paying job does not automatically disqualify you from being entitled to a TDIU rating. If your salary is substantially less than the prevailing poverty level, or you are working at a job where you are protected from the requirements that someone else in that position would be expected to satisfy, such as working for a relative, the VA should not consider you gainfully employed. A salary below the poverty level is called “marginal employment.” A job where you are protected from normal work requirements is called “sheltered employment.” Both marginal and sheltered employment are exceptions to the unemployment requirement for TDIU benefits.
As you are using your FMLA benefits two days a week arguably you are not being held to the same standard as other workers who are working a full work week. Usually the term “sheltered employment” is used where a veteran is working for a friend or family member and they are aware of his or her situation. As a result they let the veteran come and go at will and lay down in the back room when they require it.
In your case when you are at work are you treated the same way you were before you took FMLA? Are you doing the same work as other workers? This is not a legal opinion but if the answer to these two questions is “yes” I would argue you are not in a “sheltered employment” situation.
But……it should not matter whether or not you are in a “sheltered employment” situation as you have an opinion from a VA physician that you should not be working full time. Does the VA physician expect your condition to improve in the near future?
Have you applied for any benefits from the Social Security Administration such as Social Security Disability Insurance?
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