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Tbird

Unemployability and working in a sheltered environment such as a family business

Question

For example: a veteran with PTSD works for a family friend’s business. The family friend provides the veteran with an office and duties that afford limited interaction with other people. The veteran’s salary pays his bills, and is over the current poverty threshold. Because the veteran’s job has been tailored to his individual needs (limited interaction with other people), his job is considered to be sheltered, and therefore falls under “marginal employment.” The VA cannot consider this job as being substantially gainful employment, and must not use it against him in determining IU.

https://www.hillandponton.com/unemployability-iu-guide/

Marginal employment shall not be considered substantially 
gainful employment.  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.  

Significantly, however, marginal employment may also be held 
to exist, on a facts found basis, based on employment in a 
protected environment such as a family business or sheltered 
workshop even when earned income exceeds the poverty 
threshold.  Consideration shall be given to all claims as to 
the nature of the employment and the reason for the 
termination.  38 C.F.R. § 4.16(a).

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Sue. that is the BIGGEST problem with the ROs.

You hit the nail on the head!

And why I push for using the CUE tactic within the appeal period....

This is why the BVA has so many claims. Probably half of them should never even get there.

This quote below is one part of a letter I sent the Secretary Shulkin and to President Trump.

"I also am the surviving spouse of Rodney F. Simmons, Vietnam (USMC), who is dead due to VA health care ( FTCA/Section 1151 award- proof available if requested.) Subsequently ,I also proved that VA malpracticed on two Agent Orange conditions as well, that were found to contribute to his untimely death.

              Claimants have the ability to file a CUE claim ( CUE- clear and unmistakable error- 38 USC 5109) on any unappealed decision that they feel was wrong due to one or more specific  legal errors the VA made in that decision  that prevented them from attaining a proper monetary service connected award.

              Just about every decision I received as a widow from the Buffalo VARO was wrong and often  only when I filed a CUE claim.

But I also have had success in filing this type of claim within the appellate period, under the auspices of 39 USC 5109, most recent in March 2015 when I received a denial ,that upon receipt of my CUE, was reversed about 4 weeks later in April 2015. I have been successful with this tactic before and find that 2 vet reps have also used it because they must have read my explanation on the large web site for veterans that I have been a volunteer at, for 20 years.

              I suggest that a Fast Letter be prepared to go to all VA Regional Offices and all Veterans Service Organizations, stating that:

  Upon receipt of any Regional Office decision that contains a valid and legal CUE either due to a violation of the VCAA ( 5103 Waiver) ,thus due process violation, that caused a CUE to occur in the decision, or due to the wrong diagnostic code on the rating sheet or due to any failure to consider probative evidence the claimant has supplied to them, or any other legal error that was detrimental to the claimant, the claimant and/or their POA representative  should  file a CUE claim immediately, asking the VA to correct the error.

The Claim must conform to CUE criteria as to identifying the exact legal error and how that error is detrimental to the veteran.

I suggest as well to add this:

The traditional NOD one year timeframe will stop until the CUE claim is decided.

The traditional NOD time frame will only begin upon receipt by the claimant and their POA of the decision on the CUE, that will include full appellate rights.

One cannot prepare an adequate NOD when a decision contains a CUE to their detriment.

(NOD Notice of Disagreement)"

The WH Vet hot line told me I would hear soon from either the VACO or the White House.

I raised many issues with them but this one is a prime issue that affects so many of us negativelu and also causes the backlog. EWe sure didnt.

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Indeed. But the raters frequently miss this second section. They used the income level to deny me. When I mentioned to them the sheltered environment the person on the phone taking all the info stated "I never heard of that". Denied. All remedied now but took a long time. If the rater had read this info in 2012 they really could have avoided an appeal.

Edited by SueEdel

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SueE, most Vet's and probably a majority of VSO's have a tendency to fail to address the "Sheltered Income" factor in the initial IU Claim, thus the Denial and need to Appeal. 

Had a 21-4138 extensively addressing how the "Sheltered employment" was your only source of "Earned Income" and citing your Employment Evidence of Record verifying the Sheltered Employment as well as listing the 38 CFR Section pertaining to IU and Marginal and Sheltered Income could have Sealed the IU Deal.     

We're all guilty of Woulda, Coulda, and Shoulda when it comes to our Claims and Appeals.

Semper Fi

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It is the law but VA looks over that law they will not allow this to often 

just be careful. I cant afford to lose $36,000 and not working for $12,000 and work. never will

just me.

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I submitted 21-4138. Six well written paragraphs. I contend that once my file was moved from Cleveland to Fargo in 2013 and Fargo called and asked about my employment situation they looked no further than the fact than I maintained some employment.  The VA caller stated "I've never heard of anything like that". Basically you work or you don't. I don't believe they looked at this document.

In another area of my claim they totally missed two letters of Nexus. Discounted them as unacceptable lay statements. One letter was from a VA doctor. The other for one who has treated me for 20+ years. Both properly written by VA standards to form Nexus.

On appeal they seemed to have found and or recognized these documents and the 21-4138. They utilize them and quote them in their decision.  My attorney didn't think it was necessary to submit anything else as the VA obviously missed these.

 

 

Edited by SueEdel

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