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

[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