tdiu Being Fired/having To Quit Due To Sc Disabilities

[BoonDoc]

I have been fired twice, and had to quite once due to my SC disabilities, and in each case the former employer lied as to why I was fired, or left. The VA has been holding this against me for years.

My last job was I had was a part time job that I worked two hours a day in an office of a SEC 8 HUD apartments, making less than $500.00 per month.

I had to quite, and let My wife take over.

The VA said that I proved that I could work, even though it wasn't gainful employment.

I sent in My tax returns for the year that they said that I worked; proving that I had no income for said year. The Va didn't budge on their position.

Has anyone, who has had this happen to them, been able to dis-prove false statements made to the VA by former employers?

I believe that this is vital to my claim for TDIU.

The only thing that I can think of is hiring an attorney, to get their records.

Any suggestions would be appreciated.

BoonDoc

[Berta]

Some employers are afraid of the ADA- the anti-discrimination laws against disabled regulations-and are careful what they reply to the VA with-

others aren't and will say anything.

I obtained info under the FOIA from a private federal contractor

who had discriminated against my husband.

But this was due to a Dept of Labor matter- and that is only reason I could use the FOIA.The records became federal records.

They mistakenly released info they should not have sent to me and threatened to send a US Marshall here to get it back.

I don't know if the information was a lie by another employee or not-my husband could not recall any situation with the company that would provoke this woman's statement.He didn't even know who she was.The company used her statement to say that Rod had created a hostile work environment.

But at the same time he had favorable work performance appraisals from his boss never suggesting he was 'hostile'.

I used this odd unsupported statement to support his SSA claim and his VA claim.

And he won the first ADA case here in NY-discrimination due to disability-

The HUD job you had- they too might have to release info on you under the FOIA (Freedom of Information ACt and/or the Privacy Act.)

However- if the employer states information that reveals the symptoms and extent of your disability-as bad as it might be-then I would not even worry about it.

Conversely if the employer says you were an excellent worker and they wish you had not left them- that could impact negatively on a TDIU claim too.

The employer statements are only one part of a TDIU claim.

Oddly enough I actually called the woman who had signed the statement in question many years later-and she could not recall Rod nor any incident at all like this and was surprised her signature appeared on this statement in the DOL files.

If the statement was truth -it reflected how angry he could become over something- due to his PTSD-

Rod could certainly create a hostile environment. But if it was false-it didnt matter anyhow-

medical evidence in his VA records were what was really "vital" to what awarded his 100% PTSD SC.

I don't think this is something to worry about.

"The VA said that I proved that I could work, even though it wasn't gainful employment.

I sent in My tax returns for the year that they said that I worked; proving that I had no income for said year. The Va didn't budge on their position."

Do you mean you responded to a SOC that said this and got a SSOC ?

Was this the sole reason they denied TDIU?

Did they raise any negative statements from employers in this decision?

[BoonDoc]

Berta,

Maybe I shouldn't have used the word "vital", since it was just one of the reasons given for denial.

This was from a previous denial; I opened a new claim for secondary SC disabilities, and PTSD in 2006.

I was encouraged to file for PTSD by my VA psychologist, and psychiatrist.

These 21-4192 Forms were in the rating Decision:

Job#1 no reason for termination, but stated no tim elost due to any illness.

Job#2 Gave the reason that I left due to moving to another state.

Job#3 Is the same job, just they listed the parent company, they stated that I moved.

Did they raise any negative statements from employers in this decision? No.

They also stated that I have my migraines at night time, and they only last 2-3 hours...not what my treatment records say, I have 2-3 migraines beginning at night, and lasting 2-3 days per week, with residuals post migraine.

The C&P stated that "the veteran has certain clinical markers for obstructive sleep apnea syndromeand possibility of pheochromocytoma giving rise to his headaches" I do have symptoms of sleep apnea, but thay has nothing to do with my migraines, and I didn't think they diagnosed during C&P's.

"the veterans headaches are such that he would imagine the veteran would be incapacitated but these usually occur at nighttime and that he may have skills that make him employable."

I was terminated from VA CH. 35 due to my migraines, but then again I don't know what the counselor wrote as reasons for termination...failing maybe ( I had droped a semester from too many missed days out with migraines, with 96 SEM hours and a 3.7 gpa, I wanted to graduate and work after grad school, LCSW, at the VA...kind of ironic now that I think about it.

I don't get where they are getting the frequency of my headaches, i have had the same symptoms for several years.

I am claiming secondary depression and anxiety as I have these caused by chronic migraines. They will probally say the depression is due to DDD,neck stenosis, bulging dicks with pinched nerves, etc., but I'm not going to talk anything but SC disabilities, and secondary symptoms from now on, and focus on getting the secondary symptoms SC to my SC migraines. I was in a real bad MVA where I hit my head and cracked the front windshield, side window, and the back window, then started having migraines after that.

I have an appointment with my VA neurologist coming up, I'm going to ask about a fee basis card for ER visits...I'm going to go let the docs see me while I have migraines, and start to present a more realistic picture of the nature of my abilities to work.

Thanks,

BoonDoc

[Berta]

"I was terminated from VA CH. 35 due to my migraines, but then again I don't know what the counselor wrote as reasons for termination...failing maybe ( I had droped a semester from too many missed days out with migraines, with 96 SEM hours and a 3.7 gpa, I wanted to graduate and work after grad school, LCSW, at the VA...kind of ironic now that I think about it."

Do you mean Voc Rehab?

Anytime a VA voc rehab person states that SC disabilities have caused continuation of schooling to be unfeasable-due to SC- this is excellent evidence that the vet is unemployable.

If you can get the documentation on this-it could greatly help your claim.

"the veterans headaches are such that he would imagine the veteran would be incapacitated but these usually occur at nighttime and that he may have skills that make him employable."

Was the the rater's comments?

Who did they mean by "he" in the would imagine part-

This decision could have been torn apart- I hope you rebutted everything that was incorrect.

And hopefully you could try to get the Voc Rehab records.

What is the exact status of your claim at this point?

[BoonDoc]

Do you mean Voc Rehab? Yes Voc Rehab. I think it was CH 31.

Anytime a VA voc rehab person states that SC disabilities have caused continuation of schooling to be unfeasable-due to SC- this is excellent evidence that the vet is unemployable.

If you can get the documentation on this-it could greatly help your claim. I'm going to my RO next Friday for optometry, will request them. I'm going to my RO next Friday and will request them.

"the veterans headaches are such that he would imagine the veteran would be incapacitated but these usually occur at nighttime and that he may have skills that make him employable."

Was the the rater's comments? I am not sure, it was written in the Rating Decision

Who did they mean by "he" in the would imagine part- I assumed Me

This decision could have been torn apart- I hope you rebutted everything that was incorrect. No I didn't, I was so depressed I retreated back in my shell (agoraphobia).

]

I filed again 3 years ago for same thing plus secondary SC disabilities, plus on the advise of my LCSW, and psychiatrist who gave Me a DX of PTSD with agoraphobia. I filed a claim for the PTSD with SMR's showing stresor, current diagnosis with treatment with meds and psychiatrist treating me.

And hopefully you could try to get the Voc Rehab records. I'm going to request them.

What is the exact status of your claim at this point? My present claim is at the rating board.

[WHOLESALE]

Boondoc,

Usually VA will not grant IU just for not working. You have to show on a probative level you can't sustain any work due to your S/C conditions.

Get a full IMO with review of your VA medical records stating your totally disabled for any work. Do you have a copy of your treatment records from the VA?

frank

I have been fired twice, and had to quite once due to my SC disabilities, and in each case the former employer lied as to why I was fired, or left. The VA has been holding this against me for years.

My last job was I had was a part time job that I worked two hours a day in an office of a SEC 8 HUD apartments, making less than $500.00 per month.

I had to quite, and let My wife take over.

The VA said that I proved that I could work, even though it wasn't gainful employment.

I sent in My tax returns for the year that they said that I worked; proving that I had no income for said year. The Va didn't budge on their position.

Has anyone, who has had this happen to them, been able to dis-prove false statements made to the VA by former employers?

I believe that this is vital to my claim for TDIU.

The only thing that I can think of is hiring an attorney, to get their records.

Any suggestions would be appreciated.

BoonDoc

[BoonDoc]

Usually VA will not grant IU just for not working. You have to show on a probative level you can't sustain any work due to your S/C conditions. I was fired due to my SC disability from my last 3 jobs.

Get a full IMO with review of your VA medical records stating your totally disabled for any work. Do you have a copy of your treatment records from the VA?

I agree on getting an IMO, just don't have the money. I went to my private doctor and He wouldn't do it.

I've been trying to get a complete set of my SMR's, VA MR's, and C-File.

I requested them around 3 yrs ago.. I have been waiting to request them again until i get my rating decision. I may request them next Friday when I'll be at my RO...I need them in case I'm denied on this claim.

Thx,

BoonDoc

[WHOLESALE]

I'm just referring to your statement that your old boss's lied about the reason of termination. If you can get an IMO or even a Comp&Pen exam this could clear things up for ya. I understand private IMO's can get expensive so if you can request a comp&pen exam that could do it. Also, the VA or examiner will look at your medical records to see how serious your symptoms are. Do you have any idea of what's in your records? I mean, have you explained to your shrink all your issues in detail?

frank

Usually VA will not grant IU just for not working. You have to show on a probative level you can't sustain any work due to your S/C conditions. I was fired due to my SC disability from my last 3 jobs.

Get a full IMO with review of your VA medical records stating your totally disabled for any work. Do you have a copy of your treatment records from the VA?

I agree on getting an IMO, just don't have the money. I went to my private doctor and He wouldn't do it.

I've been trying to get a complete set of my SMR's, VA MR's, and C-File.

I requested them around 3 yrs ago.. I have been waiting to request them again until i get my rating decision. I may request them next Friday when I'll be at my RO...I need them in case I'm denied on this claim.

Thx,

BoonDoc

[broncovet]

IMHO the employers statement wont be that critical. Why? Do you really think any employer would open themselves up to a lawsuit by saying something like,

"I fired him because of his poor hearing". Lawyers would drool over a statment like that, and almost no employers would do that. They might as well give employees T shirts that say:

"Please sue xyz company as they discriminate against the disabled".

So, dont worry about what your employer says. Go to your doctor instead. If He says something like:

"Veteran was fired from previous job because of his inability to get along with others, most likely due to PTSD from service" your in.

Remember what "substantial gainfull employment" means. It is defined, I think, somewhere to be earning less than the VA pension amount..which is about $10,000 per year, plus or minus dependents. If you earn more than that, you have "substantial gainfull employment" if you earn less, then you are not "substantially" gainfully employed.

SGA is defined by the regs:

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. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2006).

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.

[broncovet]

The below reference regulation was cited in this case:

http://www.va.gov/vetapp07/files2/0711166.txt

[WHOLESALE]

bronco, that's a great point you just made. That would definetely be an open invitation for lawsuit if an employer stated an employee was fired for being depressed or anxious. I don't even think most employers will even venture into this arena and just ignore request for information.

frank

IMHO the employers statement wont be that critical. Why? Do you really think any employer would open themselves up to a lawsuit by saying something like,

"I fired him because of his poor hearing". Lawyers would drool over a statment like that, and almost no employers would do that. They might as well give employees T shirts that say:

"Please sue xyz company as they discriminate against the disabled".

So, dont worry about what your employer says. Go to your doctor instead. If He says something like:

"Veteran was fired from previous job because of his inability to get along with others, most likely due to PTSD from service" your in.

Remember what "substantial gainfull employment" means. It is defined, I think, somewhere to be earning less than the VA pension amount..which is about $10,000 per year, plus or minus dependents. If you earn more than that, you have "substantial gainfull employment" if you earn less, then you are not "substantially" gainfully employed.

SGA is defined by the regs:

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. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2006).

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.

[broncovet]

I am familiar with at least TWO companies (I am sure there are more!) who do not provide a reason for firing, or even that they were fired. They simply say employee smith

worked jan 17, 2009 through July, 2 2009.

It could easily become a legal night mare for the company.

At one company I worked for, we were Forbidden to give the reason a person no longer worked there..you were to refer those questions to our company's legal department.

Employers know there is no one angrier than a fired employee, and he/she is sometimes looking for any reason to get even with those who fired him.

Sample firing Explanation letter: (hearing loss)

I was fired from my job at xyz company. However, it is the companys policy not to give anyone outside the company firing details that may lead to a lawsuit, so those pertinent details are sealed within the company.

There is no doubt in my mind I was fired due to my SC hearing loss issues. In one incident, I mistakenly thought my boss said to ____________, when he really said to __________. This led to a lot of problems.

In another incident a customer was upset and called my boss because she thought I was "moving in on her" when I could not understand what she said, and moved closer to try to be able to decipher what she said. Being Hard of hearing, it is easier to understand what the speaker says the closer they are to you, so she interpreted me moving closer to her to understand what she said as an unwanted advance.

It is company xyz's policy that communications are critical. For example, people who are not fluent in the English language are not hired for my position, as excellent communication skills are mandantory to meet our companies goals.

[BoonDoc]

Berta, broncovet, and WHOLESALE,

Maybe I'm confused about how the raters make their decision. It seems that each time I have applied for TDIU, or extra-schedular SC the raters give a different reason for denial.

Is each claim treated differently, even though it's for the same SC disability increase? I've been treating them as a continuing claim, so I have been blurring them all together is they are treated as new claims.

I don't think anything can be done about the denial from 1999 is there?

This last claim, for the migraines, I added secondary SC disabilities. I then opened up a new claim for PTSD, and the VA combined the claims since the first one wasn't decided yet.

I'm going to request a copy of my last C&P exams and see what they said. I have had trouble getting a complete set of my SMR's, VA MR's, and my C-File. I have waited until a decision was made before I request my records again.

I have a consult for neurology coming up, and I'm going to explain to the doctor that I haven't reported to a hospital because I can't drive myself, and in the past they discharge Me when I report to the ER. I'm going to ask Him if I can get a fee basis card since I can't drive myself, and have no one to drive Me to the VA every time I have a migraine.

I'm going to go and dig out the Rating Decision from this open claim and see again what were the reasons that they denied Me.

I'm saving the links, and info. that you guys have provided.

You can tell I have trouble concentrating, sorry.

Thanks for the info.

BoonDoc

[BoonDoc]

I found the C&P exam from last JUL 30, 2007, for my current claim.

Psychiatric Diagnosis:

AXIS I: 309.81 Post-traumamatic stress disorder, chronic

300.21 Panic disorder with agoraphobia

309.0 Adjustment disorder with depressed mood.

AXIS V: GAF, 53.

COMMENT ON DIAGNOSIS: I believe the veteran's frequency of post-traumatic stress disorder symptoms ais ( marked out are and put is in place of are) noted above I believe these symptoms are mild-to-moderate and have persisted for a number of years. The frequency of agoraphobic symptoms is assiated the veterans experiences. With his current medication and with his wife's assistance, he appears to be able to get out in public at least on a sporadic basis. I believe those symptoms are moderate in severity and have persisted for years. I did not find evidence that they are specifically secondary to the veteran's migraine headaches. The veteran also had some depression and I did not find evidence that that depression is specifically secondary to migraine headaches. I think his migraines are one of many factors that contribute to anxiety and depression. I did not find evidence that any psychiatric disorder preclude all employment. I think there are certain employment settings that would be possible for the veteran. He reported some social isolation. Certainly, there is considerable discomfort around other people as well as a lack of trust in other people. No impairment in thought processing or communication was noted. I did not find evidence that any of the veteran's psychiatric disorders preclude activities of daily living, although it may restrict some of his activities. The veteran denied alchol or drug use. I did not find evidence of another psychiatric disorder in today's examination other than the ones diagnosed above."

Edited August 21, 2009 by BoonDoc (see edit history)

[SLEDGE]

The regs establish a legal limbo that is favorable to the VA.

"May be assigned" and "In the judgment of" can and do nullify any actual 'rights' that you could interpret as having under the regs.

The word 'MAY' is on the first page of the VA and in virtually everything after that.

That word gives the VA permission to 'grant' your claim 'if' the agency wants to.

There aren't any statements in the VA regs that tell them something 'must be' done a certain way in order to comply with Due Process.

The courts have been trying to give us rights, but nothing has been written by or passed in the congress that changes the historical status quo.

Be nice, follow the rules and don't piss'um off.

You will your deserved benefits sooner or later.

Keep playing the game.

sledge

[BoonDoc]

Sledge,

I think pissing the VA off a long time ago didn't help Me any.

I appreciate the advice and encouragement, it's a long lonely march, as all here know.

BoonDoc

[Berta]

Interesting point on the word "may"

A C & P examiner said in a C & P on my claim that the veteran "may or may not" have had diabetes mellitus due to AO.

The BVA rejected this as inconclusive one way or the other, and accepted insteady 3 IMOs and other documentation that clearly stated he did have diabetes.

This was an undiagnosed and untreated condition never appearing in his med recs but I proved he had DMII and that it caused his death.I proved it to myself befire I laid out thousands for those IMOs. The VA was ignoring all of my lay medical evidence.

It seems to me that "may or may not" could be the same as 'at least as likely as not'.But the C & P PA didnt state it that way.

The BVA gave the PA statement no weight at all.

[Hoppy]

Boondoc

“I did not find evidence that any psychiatric disorder preclude all employment. I think there are certain employment settings that would be possible for the veteran.”

The above statement is absolutely meaningless. Unfortunately, the rater might have given weight to this statement. The only way the examiners statement would have any probative value is if he identified an expectation that you would meet the earnings requirements Wholesale posted as to marginal employment. I pasted it below.

Your profile says you are 70%. I take it this is for a single condition. Are there any other exams that address your employability other than the one I referred to above. If not, I would argue the examiners statement without reference to an expected earning capacity was inadequate and further evaluations are necessary.

Also, I agree with wholesale that proving you were fired with employers statements is not that critical. The fact that you have an unstable work history speaks for itself. It really does not matter if you quit or were fired. If you want to pin down employers file for unemployment. In my state the employer is required to respond with a statement. The statements will address as to whether you were laid off due to lack of available work or if you were terminated due to your failure to show up to work or other types of misconduct. They send you a copy of the employer’s response.

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.

[BoonDoc]

Hoppy,

I have my claim at thr rating board now, since the last week of June 2009, and I read the C&P exam in a negative way. This was addressing something that is not yet SC, PTSD. My psychiatrist and psychologisy told me to file, evernually I did after accepting I have had the symptoms for years.

I was fired years ago for missing work due to my migraines, anxiety, depression and agoraphobia. I worked 2 hours per day sitting in an office accepting application for HUD SEC 8 housing. I didn't make $500 a month.

I was in college before this, and was terminated because of the migraine, etc. and after having to have my wife take over my part time job, I haven't been able to work in 1996.

I'm keeping all of the suggestions for when I get my decision, I always plan for the worst..it doesn't take as long for me 'to get back up from the body slam of a denial'

I appreciate the help to everyone who has commented!

BoonDoc

[vaf]

Piggy-backing on what Hoppy just said, a TDIU claim may not be rejected without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.” Bowling v. Principi, 15 Vet. App. 1,9 (2001) (emphasis in text) quoting Beaty v. Brown, 6 Vet. App. 532, 539 (1994) citing see also James v. Brown, 7 Vet. App. 495, 497 (1995) (“Board ‘was not convinced that there were not some jobs he could do’ but no evidence supported that conclusion”).

[BoonDoc]

vaf,

I'm going to print off these posts, and BVA cases that you, and others have pointed me to, so I can use them in case my NOD, De novo Review is denied.

I am going to research if I can request a RO hearing if my NOD/Denovo Review is unfavorable to my claim, or if it has to be prior to a decision, and appeal.

I appreciate the input, and help.

Thanks,

BoonDoc

Piggy-backing on what Hoppy just said, a TDIU claim may not be rejected without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.” Bowling v. Principi, 15 Vet. App. 1,9 (2001) (emphasis in text) quoting Beaty v. Brown, 6 Vet. App. 532, 539 (1994) citing see also James v. Brown, 7 Vet. App. 495, 497 (1995) (“Board ‘was not convinced that there were not some jobs he could do’ but no evidence supported that conclusion”).