If you are a Veteran trying to prove entitlement to schedular TDIU (also known to some Veterans as IU) then you will need a good understanding of what it means to be unable to perform “substantially gainful activity”.

Why do Veterans need to understand the concept of “Substantially Gainful Activity”?

There are several paths to a total VA disability rating.

The quickest – arguably – path is to show that your medical condition is such that you are entitled to a 100% rating under the Impairment Rating Tables found at 38 CFR Table 4.

But what if you have more than one condition that is not 100% disabling, but the combined effect is that you are unable to work at all due to your service connected injuries?

You will at this point want to consider using the concept of Schedular TDIU – found at 38 C.F.R. § 4.16(a) – to get a total disability rating.

There are 2 elements you will need to prove, and (at least) one form you will need to file:

1) The rating percentages required by 38 CFR Table 4; PLUS

2) A demonstrated inability to get or keep substantially gainful employment.

Note: The terms “substantially gainful activity,” “substantially gainful employment,” and “substantially gainful occupation” are all interchangeable. It is just 3 ways of expressing the same concept.

What is Substantially Gainful Activity?

In a 1991 case, the CAVC asked the VA to provide a clear definition for substantially gainful employment because it “would be helpful, not only as an aid to veterans, but also as an aid to VA decision-makers and this Court.” Ferraro v. Derwinski, 1 Vet. App. 326, 332-33 (1991).

George H.W. Bush was president. (He’s now passed away).

Alexandria Ocasio-Cortez was 2 years old. (She is now a U.S. Congresswoman).

The Hubble telescope had just been launched. (It has since travelled 4 billion miles in orbit around the earth.)

That’s an impressive level of tolerance from a Federal Court.

The CAVC case Faust v. West, 13 Vet.App. 342, 355-356 (2000) is a good point to start gaining an understanding of this Legal Term of Art.

[“Legal Term of Art” is a phrase that lawyers use to signal that a particular phrase has a clear meaning to lay people, but a less defined meaning in the law].

The Court ultimately settled on this definition of “Substantially Gainful Occupation”:

“one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran’s earned annual income prior to his having been awarded a 100% rating based on individual unemployability — such employment constitutes, as a matter of law, a substantially gainful occupation and thus “actual employability” for the purposes of  38 CFR 3.343(c)(1).”

The lawyer in me feels compelled to point out that this definition applies when analyzing 38 C.F.R. 3.343(c)(1) – the VA procedures to reduce a Schedular TDIU 100% rating.

More important, however, is the fact that the definition above has been limited, by the CAVC, to the facts of that case. A precedent that’s not really of any value, in my opinion.

It does not say that this is what “substantially gainful activity” means for purposes of granting the benefit in the first place.

This is important – it illustrates how VA Regulations are, in the opinion of this author, written with an intent to create confusion.

Vague rules are written by those who don’t want to be held to  a standard, or who don’t really have a vision for what they are trying to accomplish. Or, more nefariously, vague rules enable arbitrary and discriminatory treatment.

That is the VA Bureaucracy to a “T”.

Vague rules allow the VA maximum flexibility in applying the rules to distinct factual scenarios.

The Social Security Administration (SSA), for example, decided somewhere along the way that being precise and consistent was more important and efficient than being vague and wishy-washy.  Here is what you have to show to prove to the SSA that you cannot participate in Substantially Gainful Activity:

a) You do not participate in work that involves  performing significant productive physical or mental duties; and

b) For pay or profit.

See, 20 CFR § 404.1509 (1999).

That’s specific. Not perfect, but specific enough that a claimant for Social Security disability knows what they need to prove.

Veterans don’t get that kind of specificity.

The VA and the CAVC refuse to define the term “substantially gainful activity.”

In 2017, the CAVC came close when they wrote in a decision that involved the question of substantially gainful activity for a TDIU claim:

“if the evidence or facts reflect that a veteran is capable only of marginal employment, he or she is incapable of securing or following a substantially gainful occupation and is therefore entitled to TDIU if his or her service-connected disabilities are the cause of that incapability.” Cantrell v. Shulkin, 28 Vet. App. 382 (2017).

That’s all well and good: we know that if a veteran can prove that they are capable only of marginal employment, they will be eligible for TDIU. And we know that there are two ways to prove that you are capable only of marginal employment:

  1. Demonstrate an income less than the poverty threshold established by the U.S. Census Bureau. or
  2. By the facts of the veteran’s particular case.

So, given the vagueness of method #2, we are back to square one. A veteran has no earthly idea how he or she can prove an inability to obtain or keep substantially gainful activity.

And the Veterans Court has made clear that they are not going to help veterans by providing a definition for an element that they must prove in a TDIU Claim:

“To the extent that the parties extend an invitation to the Court to define the term “substantially gainful occupation,” the Court declines to do so without first allowing VA to take a position on the matter. It is VA’s responsibility to define the terms contained within its regulations, and the Court encourages it to do so.” Ortiz-Valles v. McDonald, 28 Vet. App. 65, 72 (2016).

I don’t expect the Secretary to define this term any time soon. And the Court won’t decide it until the Secretary does.

So, while two government branches are locked in a game of “You Go First, No You Go First, No YOU go first, NO YOU Go First,” Veterans TDIU claims languish in the hamster wheel.

So what is a veteran trying to prove in a TDIU claim that they are unable to get or keep substantially gainful activity?

Bottom line when it comes to Substantially Gainful Activity and TDIU in a Veterans claim.

It is always best to make sure that you can show that as a result of your service-connected disabilities, you are unable to engage in substantially gainful activity.  This means establishing a few facts:

1) How your service-connected disabilities specifically limit your ability to WORK

2) How your service-connected disabilities specifically limit your ability to MAKE MONEY from that work.

And remember – this is one of those areas that you may want to reach out to an accredited VA Benefits attorney: there are a lot of land-mines in this area, and if you step on one at the VA Regional Office, you may not find out about it until you get to the Court of Appeals for Veterans Claims.

By the time you get to the CAVC, the chance to fix these kind of errors is extremely limited.

©2016 – present, Veterans Law Blog®

First published: January 15, 2016

Use of this content without the express and written consent of Chris Attig is forbidden.

1 Comment

  1. Dave Spencer

    Chris, this is really great information. In my initial claim efforts for PTSD, anxiety and depressive disorders, I asserted that my symptomology prevented me from maintaining gainful employment; I outlined the fact that I had two jobs in a row that after about 5 months I quit because of various stressors that piled up until one day I just couldn’t take it any more. After the last job, I couldn’t even think about going out to apply any more, and when I tried a few times, I couldn’t even get out of my car when I got to the place, to go in and puit in my application, so I just ended up driving around for a while and went back home. I got VRE benefits to work toward a degree in psychology, got into the third year and things piled up and I quit and ended up in the VA Domicile for a month. Well, when the decision came down, the VA simply said the fact that I hadn’t worked for 5 years didn’t mean I couldn’t maintain some kind of job, and that was that…

    That is why I am considering taking up the fight again, but it’s like I told a doctor once, if I had the mental acuity and the emotional strength to persevere daily with all this obstructionism I probably wouldn’t need to obtain these benefits…

    Thanks, Chris.

    Reply

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