ptsd Can You Work If You're 100%

[PE1]

Can you work even if you're 100%? Not from PTSD. Say a Professional job like a Lawyer, Doctor or Accountant? Those jobs are physically not demanding.

[poolguy11550]

That doesn't seem possible. It seems to me the VA would have to to reduce the 100% schedualar rating to a lesser rating before needing to make a decision on IU. The VA must inform the veteran if they propose to reduce a rating. And I know it is a rare instance the VA will consider IU without a request from the veteran. I don't see how a schedualar rating can be reduced without the veteran knowing about it at some point. (if the law is followed)

IU is a claim within its self. Generally speaking one must apply for it or if you get a rating of 70% (or higher) it is automatic that the R/O starts the adjuication and generally the veteran still has to complete the appication. IU and a 100% scheduler can be proposed for reduction. So I agree with timeto.

Edited December 20, 2008 by poolguy11550

[danang_1969]

TS Snave and John999, Under due process rules, I doubt the VA could get away w/that. Anytime the VA makes a decision they are required to notify the claimant of the change, thus allowing the claimant to appeal the decision. Now I could see how the VA might still do it but the claimant would prevail under failure of due process. jmo

pr

I don't know what happened I posted and IT appeared I did not post and I posted it 2 more times before I ever saw it there. My brain I guess, SORRY.

NOTICE OF YOUR DUE PROCESS RIGHTS

VA FORM 21-0506

AUG 2001

EXISTING STOCKS OF VA FORM 21-0506, JAN 2001,

WILL BE USED.

You may choose to be represented, at no cost, by an accredited representative of a

veterans service organization or State or county veterans agency, that has been

recognized by the U.S. Department of Veterans Affairs (VA). If you want one of

these organizations or agencies to represent you, please let us know and we will

send you a list of them and the required form for you to submit. You may choose

to be represented by an attorney or a veterans claims agent, but they may only

charge you for services provided after the Board of Veterans' Appeals decides

your claim. A listing of attorneys who represent veterans and their families is

available on-line at www.vetapp.gov. The forms for appointing one of these

organizations or agencies, or an attorney or agent to represent you, are available

on-line at www.vba.va.gov/pubs/candpforms.htm or we can mail the form to you

if you request it. If you have already appointed a representative, you do not need

to do anything further.

You may request a hearing to present testimony or evidence to support your claim.

If we receive your request for a hearing within 30 days from the date of the letter

attached to this notice, we will not make a final decision until after the hearing is

held or until 60 days from the date of the attached letter, whichever is later. If we

receive your request for a hearing more than 30 days from the date of the attached

letter, we will hold the hearing but will not delay making our final decision.

If you want a hearing, please notify our office and we will arrange a time and

place. You may bring witnesses if you want and their testimony will be included

in your VA claims file. We cannot pay for expenses related to your hearing.

RIGHT TO A HEARING:

RIGHT TO REPRESENTATION:

NOTICE OF YOUR DUE PROCESS RIGHTS

VA FORM 21-0506

AUG 2001

EXISTING STOCKS OF VA FORM 21-0506, JAN 2001,

WILL BE USED.

You may choose to be represented, at no cost, by an accredited representative of a

veterans service organization or State or county veterans agency, that has been

recognized by the U.S. Department of Veterans Affairs (VA). If you want one of

these organizations or agencies to represent you, please let us know and we will

send you a list of them and the required form for you to submit. You may choose

to be represented by an attorney or a veterans claims agent, but they may only

charge you for services provided after the Board of Veterans' Appeals decides

your claim. A listing of attorneys who represent veterans and their families is

available on-line at www.vetapp.gov. The forms for appointing one of these

organizations or agencies, or an attorney or agent to represent you, are available

on-line at www.vba.va.gov/pubs/candpforms.htm or we can mail the form to you

if you request it. If you have already appointed a representative, you do not need

to do anything further.

You may request a hearing to present testimony or evidence to support your claim.

If we receive your request for a hearing within 30 days from the date of the letter

attached to this notice, we will not make a final decision until after the hearing is

held or until 60 days from the date of the attached letter, whichever is later. If we

receive your request for a hearing more than 30 days from the date of the attached

letter, we will hold the hearing but will not delay making our final decision.

If you want a hearing, please notify our office and we will arrange a time and

place. You may bring witnesses if you want and their testimony will be included

in your VA claims file. We cannot pay for expenses related to your hearing.

RIGHT TO A HEARING:

RIGHT TO REPRESENTATION:

Edited December 20, 2008 by danang_1969

[tssnave]

Well, I've been kicked out of the living room while everyone wraps Christmas gifts so I thought I'd look up what I've been writing about how the VA can change your rating and not tell you if you go from 100% schedular to 100% IU.

It is under the 2007 and 2008 VBM (Veteran's Benefits Manual) Section 5.10.7 The Process by Which Running Awards of Compensation Are Reduced:

"There are a few important exceptions to the prereduction notice requirement. 563 According to a precedent opinion of the VA General Counsel, the VA is not obligated to comply with the advance notice requirements set out at 38 C.F.R. § 3.105(e) when proposing to reduce a compensation award if the actual amount of compensation paid is not reduced as a result of the proposed rating reduction. 564 "

563. Id. § 3.103(:D(3).

564. VA. Gen. Coun. Prec. 71-91 (Nov. 7, 1991). In the particular case that produced this VA General Counsel opinion, the claimant’s compensation payment at the 100 percent level was unaffected even though his rating for residuals of gunshot wounds was reduced from 20 percent to 0 percent. This result occurred because another of the claimant’s disability ratings was increased from 70 percent to 100 percent, thus leaving the overall amount of compensation paid to him unaffected.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

What this says to me is that the VA could reduce your 100% schedular rating to 70% schedular rating an award you 100% IU which would mean there was no change in rating, per say, but you would then be under the IU income verification rules and not know it.

Also, to address another point in this thread - you do not have to apply for IU if you have an inferred claim in your file. In my case, the C&P examiner clearly stated that I could not work due to symptoms of my sc bipolar disorder which is an inferred claim for IU.

Now, I'm not able to work due to my sc bipolar disorder so the whole thing is theoretical for me but what gripes my shorts is that the VA could, by rule and regulation, pull a stunt like this. What about the vet who has a 100% schedular rating for physical disabilities but is actually still able to work and they decide to lower his rating(s) but give him IU and then he gets the income paperwork - POW!! There goes his 100% and very importantly, his wife's right to DIC - all without proper notice until well after the fact. Given the ways they have monkeyed around with the IU paperwork I just don't like this rule hanging out there.

Sorry it took so long for the citation. I'm actually thrilled I was able to find it in the VBM. Sometimes I read stuff that annoys me so much I don't print it or remember where I found it.

I don't want to worry anyone I simply want everyone to be aware of the possible pitfalls with their claims. If the VA ever did it to me it wouldn't matter because I'm not able to hold down a job whether they rate me 70%, 100%, IU, or 50% - their numbers don't mean a hill or beans but not being able to show up to work regularly (or worse, showing up manic) is what keeps me from working but I know there are vets out there who have other disabilities that they are able to manage and still work so it's something to be aware of.

Well, maybe they'll let me back in the living room now! ;-)

Merry Christmas!!

TS

Edited December 25, 2008 by tssnave

[timetowinarace]

Well, I've been kicked out of the living room while everyone wraps Christmas gifts so I thought I'd look up what I've been writing about how the VA can change your rating and not tell you if you go from 100% schedular to 100% IU.

It is under the 2007 and 2008 VBM (Veteran's Benefits Manual) Section 5.10.7 The Process by Which Running Awards of Compensation Are Reduced:

"There are a few important exceptions to the prereduction notice requirement. 563 According to a precedent opinion of the VA General Counsel, the VA is not obligated to comply with the advance notice requirements set out at 38 C.F.R. § 3.105(e) when proposing to reduce a compensation award if the actual amount of compensation paid is not reduced as a result of the proposed rating reduction. 564 "

563. Id. § 3.103(:D(3).

564. VA. Gen. Coun. Prec. 71-91 (Nov. 7, 1991). In the particular case that produced this VA General Counsel opinion, the claimant’s compensation payment at the 100 percent level was unaffected even though his rating for residuals of gunshot wounds was reduced from 20 percent to 0 percent. This result occurred because another of the claimant’s disability ratings was increased from 70 percent to 100 percent, thus leaving the overall amount of compensation paid to him unaffected.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

What this says to me is that the VA could reduce your 100% schedular rating to 70% schedular rating an award you 100% IU which would mean there was no change in rating, per say, but you would then be under the IU income verification rules and not know it.

Also, to address another point in this thread - you do not have to apply for IU if you have an inferred claim in your file. In my case, the C&P examiner clearly stated that I could not work due to symptoms of my sc bipolar disorder which is an inferred claim for IU.

Now, I'm not able to work due to my sc bipolar disorder so the whole thing is theoretical for me but what gripes my shorts is that the VA could, by rule and regulation, pull a stunt like this. What about the vet who has a 100% schedular rating for physical disabilities but is actually still able to work and they decide to lower his rating(s) but give him IU and then he gets the income paperwork - POW!! There goes his 100% and very importantly, his wife's right to DIC - all without proper notice until well after the fact. Given the ways they have monkeyed around with the IU paperwork I just don't like this rule hanging out there.

Sorry it took so long for the citation. I'm actually thrilled I was able to find it in the VBM. Sometimes I read stuff that annoys me so much I don't print it or remember where I found it.

I don't want to worry anyone I simply want everyone to be aware of the possible pitfalls with their claims. If the VA ever did it to me it wouldn't matter because I'm not able to hold down a job whether they rate me 70%, 100%, IU, or 50% - their numbers don't mean a hill or beans but not being able to show up to work regularly (or worse, showing up manic) is what keeps me from working but I know there are vets out there who have other disabilities that they are able to manage and still work so it's something to be aware of.

Well, maybe they'll let me back in the living room now! ;-)

Merry Christmas!!

TS

Good work on getting the citation. That's good info to know.

I respectfully disagree that a vet can lose a 100% schedualar rating and be given IU without the vets knowledge though.

1. The citation does not mention IU. It only addresses schedualar ratings.

2. Before IU will be considered, even for an infered claim, the 100% schedualar rating must be reduced first. This would cause a reduced compensation untill an IU claim is awarded and the rater cannot assume what the decision will be on a IU claim that doesn't exist yet. Even if infered, IU is a seperate claim and only applies to veterans with less than 100% schedualar ratings. Untill that 100% schedualar rating is lost, IU cannot be considered.

3. As stated earlier, even if infered, the veteran must fill out the IU paperwork before a decision is made.

I do agree that the VA should not be able to reduce any rating without the veterans knowledge. Even if it does not immediatley reduce the veterans comp payment, for a 100% vet it has the possibility for hurting chances at SMC. As this is a VA General Council opinion, I believe it would not hold up in court if challenged.

[tssnave]

Time,

Thanks for the reply. I certainly hope you are right.

I had not thought about "As this is a VA General Council opinion, I believe it would not hold up in court if challenged". What a hassle and long wait for the vet who has to challenge this in court since the VA's position (until overturned) is well documented.

I am a one disability claim so am not familiar with SMC though I've seen it mentioned on the board before.

I'm interested in your opinion - for argument's sake (the legal kind, not the personal kind - I appreciate the dialog on this topic) let me address your third point regarding the positive requirement for the IU paperwork to be filled out in a case like mine and see what you think.

Year 1 - Claim submitted and sc for bipolar disorder denied (VA ignored SMRs and shrinks' letters who treated me on active duty - perhaps they don't like it when a vet finds out 30 years after service they have a valid claim - nobody told you back then if you were being seen by mental health to talk to VA when you got out).

Year 2 - NOD nets C&P where examiner states there is plenty of evidence to connect inservice treatment with current treatment - also states I am 100% social/occupation disabled and unable to work due to sc bipolar disorder (inferred IU claim) - but the VA rater ignores their own examiner's statements and rates me 50%.

Year 3 - 2nd NOD goes in with request for higher rating to include IU - I sent in both the IU form and the employer verification form - as well as a letter from my PCP and an IMO from a local shrink who agreed w/ the C&P examiner that I am 100% soc/occ disabled due to sc bipolar disorder - VA rates me 100% schedular.

So, in my case, I am rated 100% schedular for one disability and within my cfile is a request for IU plus the completed IU paperwork to include the IU request and the IU employer verification form.

Now, for sake of argument, let's assume that after having held a 100% schedular rating for 9 years, in a state of mania I write a novel or sell a patent or some other way of making money that doesn't require a 9-5 job since that's out of the question, and make a modest amount of money - more than poverty level but not enough to keep my spouse comfortable if I died.

As I understand the VA Counsel Opinion under discussion, if the VA decided to reduce my compensation to 70% they would have to evaluate me for 100% IU at the same time because of the C&P examiner's statement raising an inferred IU claim combined with my previous IU request in my last NOD with completed IU paperwork in my cfile. Should they decide to reduce me to 70% but recognize that all the evidence supports 100% IU they could, under the VA Counsel Opinion, change my rating to 70% and at the same time grant 100% IU but don't bother to notify me until a year later (in Year 10 when my spouse would have become eligible for DIC) when they require my income verification. By this time my book or patent or whatever has netted me more than the poverty level they use to determine substantial income and they cancel my 100% IU because of my income and hold with the 70% rating I was completely unaware of effective the end of Year 9 rendering my spouse ineligible for DIC since I wouldn't have held the 100% rating for 10 years.

Needless to say, I would fight this but in the interim, should I die, my spouse has lost DIC rights all because the VA has a General Council Opinion that states they can change my rating without notice if the percentage doesn't change.

If I weren't married, given this hypothetical situation of writing a patent or book or somehow making money, I wouldn't care. But since I am married and want my spouse to be able to have DIC and more importantly, CHAMPVA, I don't like the General Counsel Opinion on this matter.

Now, if you've read this whole thread, thanks! I would be very interested in what you think regarding this hypothetical situation. While I think my writing a book or patent is unlikely I do know that some great inventions and literature have been written by folks w/ bipolar.

Thanks,

TS

[timetowinarace]

TS,

My opinion is that the VA would first have to reduce your current schedualar rating before considering IU. Therefore the VA would have to notify you of of the proposal to reduce as per 38 C.F.R. § 3.105(e) requires. A reduction of a single 100% rating would reduce the veterans compensation untill IU is decided so the VA general councils opinion does not apply. Given your example, 9yrs at 100% schedualar, you are allowed to work. In order for IU to be determined current information must be requested and recieved. The 9 year old IU request and forms and medical opinion would not be sufficiant to make a decision on.

VA often breaks laws. I cannot say that what we are discussing CAN'T happen. But, I can say I don't think it's legal.