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Q555: Hello, I have a 70 percent rating and paid at 100 percent for unemployability and it’s total and permanent. Am I allowed to invest or be part owner of a business if I am not doing any actual work other than investing a bit of money? Thank you.
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A1: 38 C.F.R. 4.16(a) the section of the Code of Federal Regulations that states the requirements for eligibility for TDIU Benefits, states the following:
Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.
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.
The VA does cross check with Social Security.
Go to the US Bureau of Census website, and look up the poverty threshold for your area for one person.
Sheltered Income
Veterans case law is not 100% clear on what constitutes a "protected environment" or "sheltered employment" or "marginal employment" for TDIU purposes. I strongly encourage that you get legal advice from an accredited VA attorney if you believe that your work is sheltered/marginal/protected so that you do not lose your TDIU benefit because you exceed the VA unemployability income limits.
https://www.veteranslawblog.org/va-unemployability-income-limits/#:~:text=Many%20veterans%20will%20not%20take,and%20lose%20their%20TDIU%20benefits.&text=Bottom%20line%2C%20in%20many%20situations,income%20while%20receiving%20VA%20unemployability. (RJ) 10/28/20