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.

[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

[SLEDGE]

This is total disability.

Code of Federal Regulations]

[Title 38, Volume 1]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 38CFR4.16]

[Page 365]

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 4_SCHEDULE FOR RATING DISABILITIES--Table of Contents

Subpart A_General Policy in Rating

Sec. 4.16 Total disability ratings for compensation based on

unemployability of the individual.

(a) 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)

(:P 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 and Pension 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.

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989;

55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct.

8, 1996]

[Cherie33]

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.

theotherguy,

The rating was completed in April 2007. They did not mention IU.

Cherie33

[tssnave]

Cherie,

Regarding your statement on your self-employed income: "I don't think its really gainful"

VA case law has determined that gainful employment is based on poverty levels (in other words, you can work part time so long as you don't make more than the poverty level for your household situation).

Here's a link to the reg and the poverty guidelines.

http://www.warms.vba.va.gov/admin21/m21_1/part6/chg123.doc

http://aspe.hhs.gov/poverty/figures-fed-reg.shtml

Sounds like you have really been round the bend with the VA. My opinion, and please take it as such, is that if you are unemployed and not making above the poverty level for your household due to your SC disabilities then you are entitled to UI and should apply. Now, that doesn't mean that the VA won't pull some of their stunts to prevent you from getting it but that is out of your control. The only thing you CAN control is whether or not you put in for it. I understand you want to protect the rating you have, especially after having it threatened already, but the difference in compensation between 70% and 100% is significant, especially over the course of your lifetime.

The other thing to consider (I may be older than you are), is if you are not working due to your sc disability then you are most likely not putting money up for retirement. There is a long term negative impact to your financial situation that comes from not working that you may not be thinking about if you are in your 20s, 30s, 40s, or even early 50s but at some point in your life you may realize, hey, I don't have any money in retirement because I couldn't work. IU can offset some of that financial shortfall that you have because you can't work due to your sc disability. If you are not solely dependent on your VA income then I'd say go for it. If it is your sole means of support I understand your hesitation but again would suggest you carefully consider it. Again, just mho.

I am also surprised that your decision letter didn't address IU since you were rated 70%. I thought they either had to consider it or tell you in writing why they didn't. Hmmmmm.....

Just curious, is the rep you talked to from the VA or from a service organization? It's because of answers like the one you got that hadit is such a great resource.

Good luck,

ts

Edited May 11, 2007 by tssnave

[theotherguy]

Cherie,

I'm glad to here that your decision was recent. If you file for IU ASAP (and it is granted) you should be able to go back to the date you became schedularly eligible for the benefit; which would be the effective date your 70 percent evaluation was established from.