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Lemuel

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  • HadIt.com Elder

I have a question.  Does anyone know of any "case law" on 38 CFR 4.16, the part on "marginal employment?"

I had a long email discussion with my former attorney regarding TDIU.  She was considering coming back on my claim.  But I want my TDIU  claim back to 1987 when I first submitted it.  I worked, part time, in a sheltered environment following giving up on rehab.  I gave a shot at trying to get jobs I thought I might be able to do by working extra time off the clock.  Jobs that required a lower skill level than I have when I'm functioning.  She is now refusing to come back on the claim because she believes (personally apparently, no case law cited) that if you are getting charity money in connection to a job it counts as "a substantially gainful occupation" if the pay is near, at or above poverty level.

My part time employer made a statement in writing to the VA that made me realize I wouldn't have made it as a Hotel Night Auditor which is a low paying low bookkeeping skill job that I had been applying for in addition to part time jobs.  After 3 years I gave up the part time job because of increased charity.  It made me feel like a beggar on behalf of the VA.  My employer's statement said he had twice moved part of my work to another employee.  Also that the most difficult thing for him to deal with was my being unable to function on demand when he needed me at times.  I was employed to work a specific client's, famous actor, books.  Out of charity, the statement said, they agreed to pay me 4 days per week to do a 3 day per week job.

I was unable even keep up the 3 day a week job working an extra 16 to 30 hours over the 32 hours I was on the clock.  And I knew the job was really a 3 day per week job or even less because at times, when I was clicking, I could catch up a great deal of work.  The work didn't change in quantity or complexity.  I just changed in functioning level because of enervations, partial and complex partial seizures that were untreated.

 

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  • HadIt.com Elder

How do I pick up more email feeds from Hadit.  So far only from responses to my posts.  I'd like to follow the posts of individuals and comment on other's questions.  I've been at the VA adjudication process for 32 years.  But I learned the most from the Judge I drew during the hearing and in going over her decision.

4 hours ago, Navy04 said:

This is not your actual rank on file, it is for the Hadit Forum site. The longer you are on and as you post more stuff, your rank goes up on the Profile. Hence mine due to being on here a long time, and writing a lot, Lol.

 

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  • HadIt.com Elder

Between the date you first filed a claim and the date you got TDIU how did you support yourself?  This is what the VA would want to know?  Charity is not gainful employment.  I think your old lawyer wants a slam/dunk.  I don't think she knows what she is doing either regarding the definition of "unemployability".  If there is a big pot of potential TDIU retro money at stake  you should be able to get a lawyer to go for it.  What I have found is that many or most lawyers want to get paid in a reasonable amount of time.  With the VA you never know since they can just keep rejecting your claim for a decade and not many lawyers will hang in there that long especially if they are spending money to get a shot at a jackpot.  When you get to exact definitions of "gainful employment",  sheltered work, part time vs full time work,  and how close to the poverty level you income is from work these are all questions that have been debated.  There must be case law on all this stuff.  You want to cite decisions that set the rules for that set of claims.

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  • HadIt.com Elder

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20 minutes ago, john999 said:

Between the date you first filed a claim and the date you got TDIU how did you support yourself?  This is what the VA would want to know?  Charity is not gainful employment.  I think your old lawyer wants a slam/dunk.  I don't think she knows what she is doing either regarding the definition of "unemployability".  If there is a big pot of potential TDIU retro money at stake  you should be able to get a lawyer to go for it.  What I have found is that many or most lawyers want to get paid in a reasonable amount of time.  With the VA you never know since they can just keep rejecting your claim for a decade and not many lawyers will hang in there that long especially if they are spending money to get a shot at a jackpot.  When you get to exact definitions of "gainful employment",  sheltered work, part time vs full time work,  and how close to the poverty level you income is from work these are all questions that have been debated.  There must be case law on all this stuff.  You want to cite decisions that set the rules for that set of claims.

Mostly on my wife's income with additional support from her parents.  We decided to go to Japan and let her take care of her aging parents in 1990.  After my wife developed Meniere's Syndrome in 2004 we lived entirely of my small VA check, SSDI check and her fathers pension until he died in 2011. Because our SS and my VA Compensation were in $ and Yen went down to only 75 yen to the dollar we had to return to the U S in 2012 creating a large credit card debt that I was finally able to pay with the check for TDIU back to 2009.

Initially I was going to stay behind for a few years and work for the Business Manager but I was mistakenly treated with Tegretol for atonic seizures after an MVA which made my functioning much worse and led to the offer to add another part time employee.  I wonder now, if I had read the pharmacy handout that comes with your medication if I would have been able to talk the physician into changing meds.  But that didn't happen and I had to quit taking Tegretol on my own because I just kept getting worse and worse in the 5 months I took it.

I wonder now, after the West LA VAMC and UCLA Medical Center lost their research credentials in the late 1990s, if I was a research subject to see how bad the side effects would become.  Hard to tell.  But there must have been some reason the neurologist wouldn't change the medication.  Making it worse, I was taking Prozac at the same time which had the same side effects.  Most of it is in the RBA that I just received.  But the 5 months of treatment in the seizure clinic are missing as well as about 8 months of treatment in the spine clinic sometimes referred to as the back clinic in the few pages of the RBA that refer to those records.

I've posted, under tinnitus, a copy of my motion to correct the RBA that I'm developing requesting any correction suggestions that may come from those who have already been through this.

 

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  • HadIt.com Elder

I think you should have gotten TDIU  for the years before your current date.   I think you would have a good case for TDIU as the same date you got SSDI?  The  VA should have known you were getting SSDI for the same condition you were getting VA compensation for if you informed them.  That should have triggered a implied TDIU claim.  I say "should have" but with the VA you usually have to claim it, but on an appeal that reveals your unemployability that should have been an informal and implied claim for TDIU.  To some extent I am throwing it at the wall to see what might stick for you just the way the VA throws you at the wall to see if you stick.  I don't mean this in a nasty way except for the VA part.  They are just SOB's  IMO.  If all the vets who deserve 100% or TDIU were added on the rolls would triple.

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  • HadIt.com Elder
14 hours ago, john999 said:

I think you should have gotten TDIU  for the years before your current date.   I think you would have a good case for TDIU as the same date you got SSDI?  The  VA should have known you were getting SSDI for the same condition you were getting VA compensation for if you informed them.  That should have triggered a implied TDIU claim.  

I ask for TDIU before my MVA of 1990 which took out my back.  Probably TDIU will be dated from the 1990 MVA because that is when SSDI is dated from.  But to get TDIU from that date I have to either get it linked to just the TBI which made me a safety hazard for most physical jobs because of the absence seizures that were misdiagnosed as "pseudo-seizures" at the time.  So I have to get a positive ruling on either.  SC of the MVA because of the safety hazard or the elimination of physical jobs such as a Class A driver, welder or such other work I had minimal experience in.

I didn't pursue those jobs even before the MVA because I knew that at times I wasn't a safe driver from about 1983.  I didn't know why until the MVA in 1990.  I just knew I had too many close calls when I felt "foggy brained" which was too much of the time.  I was usually all right driving to work but had to wait until the fog cleared before going home.  Slept in the office a lot.

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