tdiu *important* Visited Va Claims Rep

[Cherie33]

I visited a VA Claims Rep and he told me that I should not file for TDIU if I plan to earn any money. He said if I earn any money (I am a notary and earn money doing notarial acts from time to time)that the VA will find out and cease all of my current benefits and make me pay back everything that would be paid to me.

He also said that perhaps I should file IU P & T in a few months giving me time to have had my Combined 70% rating a few months. If I am awarded IU P&T, I could earn money with no problem.

What do you guys think? He told me gainful employment to the VA means any kind of employment. (even being a notary)

Please advise...

Thanks Cherie33.

[Ricky]

He is correct on the gainful employment. I am not a TDIU knowledgeable person so maybe Berta,six, or Vike will help you. However, I do belive that a Notary would be considered gainful emplyment due to it is constant employment. Just my opinion.

[Vike17]

Cherie33,

TDIU and IU P&T are the same thing! This whole thing about being able to earn any money while receiving 100% because of Individual Unemployability is only part of the equation. In the end VA is trying to determine whether you are able to follow a substantial gainful occupation, not how much money you earn.

So, more than likely if you take a part time job as a notary, the VA will try to determine whether you are able to do this or any other similar work on a full time basis.

Anytime a veteran works while receiving IU, it will raise red flags with VA and probably in the end prompt them to schedule a C&P exam to take a look see!

Vike 17

[Guest jangrin]

If I am awarded IU P&T, I could earn money with no problem.

Thanks Cherie33.

[Guest terrysturgis]

I am 100% P&T TDIU. I am an elected official and have been for 15 years. My salary is below the federal poverty guidelines ($600.00). I have not had a regular job since April 2004. The decision is as follows: Entitlement to individual unemployability is granted because you are unable to secure or follow a substantially gainful occupation as a result of sevice-connected disabilities.

Be aware, every claim has to stand on it's own merits so because your's is not exactly the same as mine you might be taking a chance for denial with the income you earn. Some here on the board suggest not working at all but in my case my family would not have survived the wait for 100% P&T without the added income. Because it worked out OK for me it may not for you. My decision states that the perepherial neuropathy is the major factor that prevents me from gainful employment. Another thing that probably influenced my decision is my schedular rating is 94.5%.

So, in summary under certain circumstances you can have income as long as it is below federal poverty guidelines and your service-connected conditions prevent you from substantial gainful employment. As Vike 17 says it does raise a red flag but the reason for my post is to state the facts as applied to my claim. I would recommend that if you can survive without the income it should be easier to get TDIU ( Total Disability Individual Unemployability ). If not make it clear to your service officer that your income is below federal poverty guidelines. Take care. Terry Sturgis

[Tbird]

here is a link to the regulation http://frwebgate4.access.gpo.gov/cgi-bin/w...action=retrieve

unemployability is not being able to be employed, so i'm not sure what your service officer is talking about.

100% scheduler for physical disabilities i believe does allow you to be employed. however a 100% scheduler for mental disabilities is a different situation, if your mental health is impaired enough to rate a 100% scheduler rating then you will not be able to be employed, if you get better enough to be employed you are no longer impaired that severly and the rating will be adjusted does this make sense?

[Pete53]

I don't think that the earnings criteria is tied to the poverty level but the Social Security amount allowed before they take Social security away and that used to be 700 to 800 a month. It goes up a little each year but its a test that is applied to determine gainful employment.

Good luck living on he test amount.

The fact is if you are TDIU or 100% for a Mental Disability it may be best to accept the money and do some volunteer work if you feel you need to get out of the house.

[LarryJ]

Of course, if the small amount that you earn as a Notary Public is paid to you in ca$h......then that puts a whole new light upon the subject. I, for example, always pay my Notary in ca$h. He always puts it in his pocket, of course I am SURE that he reports all this income.........otherwise the US Gubbermint would have NO WAY of knowing that you WERE, in fact, making any money......why, not even the VA would have any way of knowing.........know what I mean, Verne?

[Vike17]

Larry,

I certainly hope you're not implying that Cherie should work under the table, which would be rather illegal!!!!!!!!

Vike 17

[LarryJ]

WELL!

I am ashamed of you, even suggesting that I, a stalwart, registered voter, a member of my local Lodge, a G-d-fearing man, a veteran, a guy that has never (almost) ever even exspeeeded the seed limit......that I would even entertain such a dastardly deed.

[Vike17]

Larry,

That's good to hear that would never entertain such a thought!!

Vike 17

[theotherguy]

Cherie,

I hate to tell you this, but your representative clearly has no idea what he/she is talking about. I'm assuming that you figured this or you would not have brought the question here.

I would recommend that you go ahead and file the claim ASAP to protect any retroactive benefits you may potentially be entitled to receive. The only thing I could see that would prevent this would possibly be the answer to these two questions?

How many hours per week due you spend working as a notary? Is your annual salary greater than $9k?

The applicable portion of 38 CFR 4.16(a) that you should be focused on is:

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.

Hope this helps!

[sixthscents]

Cherie,

As everyone else has said, your rep is an idiot. File for TDIU.

LarryJ,

You a mason?

[SLEDGE]

Although my disabilities keep me housebound now,

I was working part-time when I was awarded Social Security AND when I was awarded TDIU with P&T by the VA. (I had layers in both cases)

Messing with totally disabled veterans is just another method that the VA uses to waste resources and thereby keep more idiots on the VA payroll.

An example that one of my teachers used: From his stint in a government office.

Once a year they had an awards ceremony to honor the secretary that had made the least amount of typing errors.

The award winner always, not sometimes, not frequently, always had zero errors. Not to mention more than one winner at any given time.

The people doing the typing took the time to proof read everything to make sure that no errors were present. Even if they took 5 times the normal amount of time to get the typing job accomplished.

So they required at least 4 times as many typists than the private sector to do the same task.

That's how the government thinks.

It does not matter if the content of a document is accurate or even true if the document does not contain any typos.

They don't care how long it takes to generate paperwork as long as there are no typos.

They don't care how much the typing costs as long as there are no typos.

In administrative government work, you only admit a mistake if you want a promotion or desire to be terminated or don't wish to be re-elected.

That's what the government calls 'getting fired'.

'Taking the fall' will get you cross trained into a higher paying position and/or solidify your retirement. Longer paid vacations are always a distinct possibility. After you get fired.

It's ALL about covering yer ass or the boss's butt, not doing your job.

It's not just an attitude, it's an established lifestyle.

If you can't blind them with your bullshit, dazzle them with your footwork.

Balls of crap always roll downhill, that's the trickle down theory.

In government, if the smell of a little turd doesn't keep the predators away, get a cow to poop on it so it can't be seen anymore.

When the army medical services can't get it right you look for deficiencies that can be reported at/on the VA.

(The VA isn't accountable to anybody, so who cares.)

The army problems slide onto the back page this week and are forgotten about next week.

Except by those affected by the slip-shod medical and compensation systems.

Since terrorist acts are illegal we will have to use the ballot box to get some responsible elected officials.

sledge

[LarryJ]

Yes, Bob.

I'm a travelin' man.

[Cherie33]

Ok...So, I see some of you say file and a few of you say basically don't file. (I think that's what I am getting from your post)

Let me elaborate on something. I have a combined rating of 50% Major Depressive Disorder and 30% IBS = 70% Combined. Now, while I do notary work as an independent contractor, I do not earn much from that. However, I am self employed. I don't think its really gainful..Also, I am unable to work a 9 to 5 because of my combined service-connected ratings. My inability to work isn't based on my 50% Major Depressive Disorder alone.

I'm not really sure of what to do. I want to file for TDIU however, I want to do the right thing. I have been through filing for an increase and instead the VA proposed a decrease. Then I had to fight to keep my 50%, then I had to appeal my 10% IBS rating, which they finally granted an increase to 30%. So, I am very skeptical in filing for anything. If I am safe at 70% Combined, then I'll just stay here. I have had my 50% rating since 1998, and I don't want to risk losing it.

Thank you for your help...

Cherie33

[theotherguy]

Cherie,

There is a measure of protection which supports your current position. 38 CFR 3.344 provides that ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Your major depression meets the criteria for this regulation since your evaluation has been static for greater than five years.

What worries me is your statement that indicates that your inability to work is not due solely to your major depression. Is the IBS what you are referring to or is it a nonservice-connected disability? If you have other factors contributing to your unemployability, I would recommend trying to secure a letter from your psychiatrist which indicates that you are unemployable due to your depression or at least which details the functional impact caused by your depression. It is paramount to assemble your own evidence in these cases to remove any potential negative preponderance of evidence and establish that reasonable doubt should be resolved in your favor.

Edited May 8, 2007 by theotherguy (see edit history)

[Cherie33]

Cherie,

There is a measure of protection which supports your current position. 38 CFR 3.344 provides that ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Your major depression meets the criteria for this regulation since your evaluation has been static for greater than five years.

What worries me is your statement that indicates that your inability to work is not due solely to your major depression. Is the IBS what you are referring to or is it a nonservice-connected disability? If you have other factors contributing to your unemployability, I would recommend trying to secure a letter from your psychiatrist which indicates that you are unemployable due to your depression or at least which details the functional impact caused by your depression. It is paramount to assemble your own evidence in these cases to remove any potential negative preponderance of evidence and establish that reasonable doubt should be resolved in your favor.

Hey theotherguy,

I am refering to my IBS..Some days it can get really ugly. Eventhough, I work from home. I sit in front of my computer, when I am not feeling too terrible. I meet with my Psych dr. in June. I'll talk to him then.

Cherie33

[Cherie33]

Hey theotherguy,

I am refering to my IBS..Some days it can get really ugly. Eventhough, I work from home. I sit in front of my computer, when I am not feeling too terrible. I meet with my Psych dr. in June. I'll talk to him then.

Cherie33

[theotherguy]

As long as the only other disability that is effecting your employability is service-connected, I'd go ahead and file the claim with VA ASAP. You can work on building your evidence while the claim is pending since it will likely take a while to get finished.

I do have a couple questions though. When was the rating completed that raised your combined evaluation to 70 percent? Was it within the past year? Did the VA defer entitlement to IU in their last rating decision? If so, you definitely want to file to protect any retroactive benefits which could potentially go back as far as the effective date of the increased evaluation for your IBS claim.

[SLEDGE]

Go for the TDIU now.

Lock in the effective date.

It's my opinion that you have nothing to worry about except losing some of the money that they already owe you.

Just make sure that you can prove, through IMOs, that you deserve TDIU.

If you have statements from family or friends those letters have to sworn statements and the signatures notorized.

Good Luck,

sledge