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  2. Really good advice from Buck52. I am 100% scheduler and IU and will not try to work even below the poverty threshold because they might then look at this as proof I can work. It took ten years to get IU and I do not want to lose it over several thousand dollars a year.
  3. broncovet is right on be careful about your finances the VA will and can appoint one (judiciary) for him and it may not be you, like bronc mention you take care of the finances and let that sleeping dog lie. glad you got to keep the 70% its good he has not got worse for both you guys sake.
  4. Berta/Broncovet, When I filed in 1970, they denied, stating because I was "nearsighted", that I exceeded the allowable vision to be in the Marines. When I was accepted into Marines, I told them I wore glasses, regularly and was near sighted. I had 2-3 exams and the Marines deem my eyes "normal" They didn't for whatever reason address the fact that I was admitted to Balboa Hospital and a eye specialist, recommended that I be discharged because of "trauma" to my eye. When I would file a claim on my eye, it seemed like I was getting the same letter, with a different signature. I never received any compensation until the BVA hearing in which the judge stated it was service connected. I do have a feeling, Broncovet, that because they paid me 10% in 2013 retroactive to 2007, the would use the percentage from 1970 to 2007, which would amount to about $22,000. But I feel the 60% is correct, that is what the C&P exam showed then CUE'D to 80&. I am seeing a "outside" Board certified Eye Specialist, who I have seen off and on for over 20 years, to really nail this down with a exam, letters etc. If the VA has to go back to the 60% retro, then it would be a high six figure amount. As I said this is all in my SMR file, and the VA has had copies of it. They make refence to it, but had continued to stand by their claim, that I had poor eyesight entering the Marines, in which the BVA judge shot down quickly. Thanks for everyone's help.
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  6. If your unsure you may have sleep apnea request a VA Sleep Study ...they will be the ones to diagnose you if you have it.?
  7. I am not saying you can't work and get IU you can if you meet the criteria to do so. Read this from Veteran Attorney Chris Attig. (V.L.B.) without breaking the VA unemployability income limits. #1: Marginal Employment & TDIU Benefits. This is the type of income that many veterans are aware that they can receive even after being granted TDIU Benefits. Simply go to the US Bureau of Census website, and look up the “poverty threshold for one person”. (Click here to see the historical poverty ratings tables from 1959 – 2015). You will see that, for 2014, the poverty threshold for one person is $12,316 per year (if you are under 65), or $11,354 (if you are over 65). In most cases, veterans are advised that these poverty thresholds are the VA unemployability income limits. So, this is the first way that you can earn an income – and continue to receive a 100% TDIU rating – without breaking the VA unemployability income limits: ensure that whatever income you make stays below the poverty thresholds for your family size. Each year, the VA will ask you to verify your employment (or lack thereof) to determine whether you are eligible to continue to receive TDIU Benefits. They typically require that you use VA Form 21-4140 or 21-4140-1 to do this report. The VA does cross check 2 databases that I know of: Social Security databases that record your work/income history, and IRS databases that record your family income on your annual tax returns. Word to the wise: if you are telling different income stories to different federal agencies, you are playing with fire, and may even be committing fraud. If you indicate in this form that your income is higher than the poverty threshold, a proposal to reduce your TDIU benefits will be forthcoming. It’s one of the few times that the VA acts with a sense of purpose – when they want to STOP paying you. #2: Sheltered Employment & TDIU Benefits Another way that Veterans can earn an income while receiving TDIU Benefits – and without breaking the VA unemployability income limits – is by participating in what is called “sheltered employment”. There are many ways that your income can be considered “sheltered”, but 2 that are clearly identified in the regulation itself: 1) Family business 2) Sheltered Workshop (these are supervised workplaces for adults with a physical and/or mental handicap) Now, just because you are working for a family business doesn’t mean your job is considered “sheltered employment”. It has to be what the regulation refers to as a “protected environment”. N.B. – 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. A protected environment occurs when the employer makes special accommodations to employ and provide an income for a family member or a disabled worker. This happens quite a lot – a family business, to reduce its tax burden or simply to help another family member, pays a disabled Veteran family member an income that they would not otherwise be able to receive. How can you tell if there is a protected work environment so that you ensure your income does not get flagged as exceeding the VA unemployability income limits? What kind of questions would you ask, and what kind of evidence would you need? If you can get answers to the following kinds of questions – typically in an affidavit by the business owner or the executive in charge of hiring/staffing – you will have a much stronger proof of entitlement to TDIU benefits even while earning an income well above the poverty threshold in a sheltered employment situation. 1) Did they employer provide any special accommodations (especially if they are not required to by the Americans With Disabilities Act) to accommodate the employee with disabilities? These accommodations are most commonly adjustments to the work schedule, the work environment, or the work duties. I have not handled a case yet where a major employer, covered by the Americans With Disabilities Act, provides an accommodation to a 100% disabled Veteran as required by law to do. This is an interesting question as to whether or not the employment could be considered sheltered when the company has a legal obligation to enact accommodations. I am not aware of any VA precedent on this topic – if you do know of a precedential case on this topic, don’t hesitate to let me know! 2) If the employee leaves the company, will the business hire a “similarly situated” person to fill the position (i.e, another worker with a disability)? There are 3 scenarios here: Scenario #1: If the business plans to modify the Veteran’s position after he or she leaves so that there are no longer accommodations to the work duties, environment or schedule, then you can make a pretty good argument that the employment is sheltered. Why? Because it appears that the position may have been created or modified just for the disabled Veteran. Scenario #2: If the business plans on continuing the accommodation, then its a pretty good argument that the position itself – and anyone that holds it – is sheltered employment. (Many employers do this for the tax advantages available to certain types of “sheltered workshops”). Scenario #3: If the business plans to eliminate the position after the disabled Veteran leaves the job, then it is most likely “sheltered employment”. None of the above scenarios are absolute: the more evidence you can show that an employer created a job for a 100% disabled Veteran – whether for “feel-good” reasons, tax incentives, or any other reason other than common business reasons, the stronger your case of showing that your position is “sheltered employment” and keeping your additional earnings within the VA unemployability income limits. 3) Is there evidence that another business in the same industry would NOT hire a similarly situated employee, and pay them a similar income, for the same type of work? What do I mean here? If your family business pays you $50,000 a year, while allowing you to come in to the job “only on the days you feel up to it”, look to other businesses in the same industry to see if they would pay that same salary to an employee that comes and goes at will. Where do you get evidence of this sort of thing? Honestly, you would hire an economist to prepare an expert report on the nature of the employment and whether or not it is sheltered, based on a survey of the particular industry. This type of expert report can get really expensive, so I would not typically do this unless it was really questionable whether the employment was sheltered or not, and there was a lot riding on the outcome. Frankly, providing evidence that answers Question #3 is probably a bit “over the top” in most Sheltered Employment claims. Legal Advice in Sheltered Employment situations. Be very careful with the Sheltered Employment rules. They are not frequently applied, many in the VA do NOT know about them, and they can lead to serious consequences if applied incorrectly. The VA fiercely protects what they believe to be the VA unemployability income limits to make sure that veterans do not abuse the benefit. I’m not telling any details here, but I know of a couple veterans who have been charged with criminal fraud for collecting TDIU benefits while exceeding VA unemployability income limits – they received a (sometimes very small) income and doing nominal work for a family member’s business. These charges usually will not stick – as the US Attorneys that prosecute these crimes have far less understanding of VA regulations than even most VA raters or Board Hearing Officials. But you’re going to have to pay a criminal defense attorney to make it go away, and the VA ain’t repaying your attorneys fees. That said, it is ALWAYS BEST to get legal advice – call a VA Accredited attorney and ask for a consultation – if you are considering earning income above the poverty threshold and want to know if it is or is not considered “sheltered employment”. Source: Chris Attig Veterans Law Blog
  8. Alex recently discussed denials of SMC's. SMC is inferred, whenever you meet the critieria. So, for effective date purposes, you dont have a "date of claim", your effective date is the date you first met the criteria. This changes things. He suggests you simply re apply. I tried to find his post on this, can not locate it right now.
  9. If hubby cant manage his finances, you do it for him and dont mention it to VA. If you think the VA benefits hamster wheel is bad, wait till you get to the corrupt VA fiduciary hamster wheel. Your rating is "protected" after its been in force 5 years or more. https://www.law.cornell.edu/cfr/text/38/3.344 READ the last paragraph: 38 CFR 3.344 C. You will get more protections at 10 years, still more at 20 years.
  10. Here is the REAL reason for the denial: There is no such thing as accountablity in the VA for making gross errors. Now, you need to either appeal it, or try a cue as Berta may suggest. It does take a high level of knowledge and skill to write a winning CUE. Remember, there is significant financial incentive for VA to deny. Why? Well, there is a chance you wont appeal, and, even if you do appeal, there is still a good chance you will die before the appeal is finalized, get too sick to continue, or so tired you give up. Even if you cross every T and dot every i and succeed in winning your claim, the VA still gets an interest free loan from you for at least 5 years or so.
  11. @GBArmy I was thinking the same thing. Just let it lie. We are ok, we got the right outcome, so it's fine.
  12. Fight for your effective date! Do not listen to your VSO. You will eventually need to hire a lawyer to win this, IMHO. Virtually "all" large retro's (except maybe Berta's) are won with an attorney. Here is why: Your retro, back to 1970 is surely in the six figure range. VARO employees, GS5-GS11, dont have the authority to sign a document which results on giving you a half million in retro. So, they just deny it. To get your effective date, you are "almost certainly" going to have to go to the CAVC. Even a BVA judge probably does not want to sign on a half million in retro. This is the typical rhetoric that VSO's spout..most likely its to save themselves work. Of course, I have not looked at your file, but, based on what you posted, you should get an earlier date, but it may be a Fenderson (staged) rating.
  13. Did they rate your eye condition at least at 10% as NSC when they denied? If so you possible can file a CUE- nice to see they are using my input to Shulkin to change M21-1MR and are CUE before decision are formally made. They did that to other vets here as well. Good news. If they did rate you at 10% NSC in any past decision, can you scan and attach the deision here -cover your F file , name , prior to scanning it.
  14. GBArmy, other than that there is no other pertinent clarification in the decision letter. I'm totally confused and at a loss of words as for their reason for the denial. I will attempt to enclose the letter as possible.
  15. Hi Everyone, I want to thank all for your support and great advice that you have provided. It has certainly helped me! I had been on the "hamster wheel", until I came here. I have a question pertaining to a E.E,D. My situation may be a little unusual but hear goes: I have been working with a VSO and she has been pretty good, but know I get the feeling she thinks I am "reaching" and trying to "milk" the system, which I am not! My situation involves, I was discharged from the Marines, April 15, 1969. I filed a claim pertaining to my eyes in November 1969, received a denial April 24, 1970. I filed again in 1978, denied, 1987, denied, finally in 2007, I started using a VSO, and later found this site. I had a BVA hearing in 2013, and I was awarded compensation on the eye at 10%. Now, I was discharged from the Marines, because of an accident that happened, that effected my eyes. This is all in my SMR, and I was sent to Balboa naval Station Hospital, where they told me I was going to be discharged because of the incident. The VA maintained that I was discharged because of being nearsighted. I have the records of the entry physical in which I was deemed fir for the Marines, passed the eyesight tests and was told my vision was "normal". The VA fought me on this all they way to the BVA hearing. My 10% disability was granted based on some notes the VA had. I then had a VA C&P exam, and was increased to 60%, then they CUE"D themselves and raised it to 80%. I now found out I basically have no sight in the left eye. I do feel that the 1970 date should be the date of the E.E>D. I also feel that the VA established via exam that I was at 60%, and I feel I should have that from the day the BVA approved my claim. Am I wrong? As I said I feel that the VSO thinks I am being "greedy" without saying in actual words. At the Hospital, I remember the eye doctor giving me his card and saying "you need to get my notes, because if you ever file a disability claim", you will have a battle on your hands". I did get his info, and kept it. Thanks again for all your help.
  16. I swear I could be a case study for the VA's process of straight blanket denials. My C-File is devoid of really anything useful. There are no rater notes anywhere the tells me how they came up with their decisions. The documents that have the most information is the statement of case I received when I filed my appeal back in 2010. Other than that it took me a while to find anything a VARO actually did. In fact the only reason there is any detailed information is because I filed a notice of disagreement. Otherwise there would be very little information in my file. It appears my denials are based of the initial review for benefits after I separated in 1996. The reason is stands out is because in the statement of case for my 2009 denial for back benefits a statement is included from my 1996 denial with the exception of a major key point.... the dates. My most recent statement of case states. SMRs showed episodes of discomfort sprain, and spasms from without a diagnosis of a chronic condition. Here is where a big problem exists..... the entire statement actually reads SMRs showed episodes of discomfort sprain, and spasms from 02 86 to 08-29 89 without a diagnosis of a chronic condition. The dates were omitted in my 2009 denial and the sad thing is that there is at least 6 visits to the doctor after 1989 for back issues. It is like they did not review any of medical records after 1989. All in all getting my C-File helps me because I see that the VA has no real intention of giving me benefits. My files shows that if I am going to actual beat them I need to hand feed them every single disability step by step.
  17. That was what I was thinking and why I asked about the 70% combined. There is no other clarification in the decision letter? You should enclose it in your response after you reedact your name, soc. security number address etc. so we can see the VA response. It really could be as simple as the RO is just trying to low ball you and hope you just go away. They make stupid errors because they don't read evidence all the time.
  18. " Is a denial over entry into a caregiver program potential grounds for a FTCA lawsuit though? " No. You can appeal the denial just like a regular claim.If you can scan and attach the denial here( and evidence list) maybe we can help more. Cover you C file#, and name ,address prior to scanning it.
  19. I don't know if his 70% includes insomnia and some of the other things you mentioned because of the pyramiding effect. But if you have been handling all the financial things in the house, I would just let it ride and not rock the boat. Some of the other members can join in as being a lot more knowledgeable than I, but I also know that if the VA appoints someone else to oversee his finances, it can really lead to some heart burn.
  20. GBARMY, I am rated 70% for just one disability; PTSD. I actually highlighted another inaccurate statement at the beginning of my letter that I overlooked. It states, "Service connected disability currently rated as 70 percent does not meet the scheduler requirements for entitlement to individual unemployability." Which I'm 100% sure is also not factual and inaccurate for as I understand any one disability rated at 60% and higher meets the requirement for entitlement to individual unemployability.
  21. Are you 70% combined, or 70% just for one disability, PTSD. 38 CFR 4.16 reads: 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: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 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. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (Authority: 38 U.S.C. 501) (b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a)of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. The decision letter doesn't provide any additional explaination?
  22. I just spoke to Brian Tally: https://americanmilitarynews.com/2019/04/op-ed-a-va-legal-loophole-ruined-my-life-and-now-i-want-to-change-the-law/ There is more in the FTCA forum, however, we are seeking anyone who was denied a FTCA case, because the doctor, nurse, dentist, etc, etc who malpracticed on them was a Federal Contractor. Also anyone whose Section 1151 claim was denied because their doctor was a federal contractor and not employed by the VA. I will give contact info if anyone replies- These would be cases where you had a strong IMO/IME that supported the malpractice charges...meaning you had a solid case, but the VA would not take responsibility for the malpractice. And we would like to know if you then filed in a Federal District Court- if you did.
  23. I applied for and was approved for SMC L in 2015. I also applied for and was denied entry into the post 9/11 caregiver program in 2015. I'm aware of the 2 year statue of limitations, but I have circumstances that would allow for an argument that would allow for an argument that I wasn't aware until recently. I know that this is kind of light on details, but I'm not exactly sure what to put and how to proceed. Is a denial over entry into a caregiver program potential grounds for a FTCA lawsuit though?
  24. Well then, I suppose I should pursue scheduler status after all. As far as sleep apnea goes, I’m not sure I have it. I do frequently have more trouble breathing when trying to fall asleep. But as far as issues when I’m actually asleep, I have no clue. The only things I can think of to potentially be filed as secondary claims are long term memory loss (have a hard time remembering my youth days before the service) and hearing damage (certain frequencies cause an unpleasant, loud distortion in my right ear). Now I’m not sure about the memory loss, but if I recall correctly, tinnitus is 10% max. That would get me to 90%, but it’s not much help in terms of gaining scheduler. Perhaps I’ll get tested for sleep issues. One thing I’ll note is I am constantly clenching my teeth due to anxiety. A simple thought about something negative causes me to clench my teeth together and bite down aggressively. Again, not sure if that’s even relevant but thought I’d make note. If I may, why are you so convinced they will reduce if i participate in marginal employment? Why bother stating the whole ‘under the federal poverty limit income is allowed’ if they’re going to reduce or propose to reduce if you do it? Makes zero sense to me. I thought being unemployable meant that you couldn’t hold down a regular job making over the poverty threshold..it would be a losing battle for them to propose a reduction based on my part-time home work...work that I do at my own pace, as my own boss, with little to no repercussion if I fail. Making 5k at home doing whatever over the course of a year is hardly enough to consider someone “employable” in my opinion I’m only 31 years old. I’m not sure I have enough work credits for SSDI, and I’m far from seeking SSR obviously.
  25. Good Afternoon fellow Vets and a Blessed Memorial Day weekend to all. I am a new member and this is the first site I have came upon in order for me to vent. I will jump right into it. I am a combat vet (Iraq) rated at 70% PTSD. I filed for an increased rating and TDIU back in November of 2018 as the symptoms I experience regarding my PTSD were worsening and keeps me from maintaining employment. I left my last place of employment in June of 2016 due to anxiety and constant panic attacks. After a C&P exam for the rating increase in December I was approved for the increase this March of 2019. A second exam for a medical opinion regarding TDIU because of my PTSD was scheduled May 13, 2019. The exam went very well I thought and the denial letter I received confirmed this. The letter stated, "Logistics Health Incorporated LHI examination dated May 13, 2019 confirms that you are incapable of maintaining employment." It also reads, VA Examiners Rationale: Individual has difficulty maintaining concentration and focus on work over an extended period, he tends to skip from one task to another without completing the prior task. Individual has significant difficulty functioning, around other people and has difficulty functioning as a team member and feels uncomfortable around others. Individual has other mental health problems or symptoms, e.g., panic attacks, irritability, suspiciousness, etc that interfere significantly with the ability to work. He has panic attacks and is easily irritated, agitated, suspicious of the motives of others." And here is the statement where I am totally confused and that got me highly agitated and irate at the time. I feel this was a gross human error and someone just clicked a submit button with doublechecking their work or paying attention to what was stated in my files. It reads, "Although you have been found unable to maintain employment, you do not meet the scheduler as provided in 38 CFR 4.16, therefore entitlement to individual unemployability is denied." I'm at a loss of words regarding that last statement. As I previously stated, I am rated at 70% PTSD and therefore meet the scheduler rating in 38 CFR 4.16. How could they blatantly mess something up so obvious!? It's unfortunate that the decision makers at the VA make things so hard for us and have some of us contemplating going to extreme measures to be heard and taken seriously about our issues and entitlements. Thanks for reading and any opinions and advice on this matter from you guys would be appreciated.
  26. Great news..finally got the letter in the mail, they continued my husband's 70% rating. The letter says although recent evidence shows some improvement in the condition, sustained improvement has not been definitively established. The VA examiner opined that your condition has progressed and it is concluded that there is not likelihood of improvement. In addition there are some additional symptoms including insomnia, anhedonia, social isolation, lack of interest, lack of energy, feeling worthless that show that the severity of your condition remains at your current benefit level. We reviewed the evidence received and determined that your service connected condition hasn't increased on severity sufficiently to warrant a higher evaluation. There is no evidence of record that shows you are unable to manage your financial affairs So first thing: it doesn't say anywhere that there would possibly be a routine future exam like this one..he is coming up on 6 years of this rating. Does that and them saying no likelihood of improvement mean we shouldn't expect an RFE in the future? I know it's the VA and you can't count on anything though... Second: there WAS evidence that he can't manage the financial affairs because the buddy statements that we're listed as evidence clearly stated first thing that he is irresponsible with money. Now we aren't looking for an increase, we were fine staying at 70, but do I need to somehow make record that he CANT manage his financial affairs? Or just leave things as is and not rock the boat? I mean not that I can just call up and say oh by the way make a note that he can't handle the money, I have to. Just a few curious things. I'm glad to have this behind us.
  27. They do keep you hoping. I have a 6 and 10 and they are always full of questions and have energy to burn...to be young again!
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