Substantial Gainful Work And Periods Of Remission

[deltaj]

This is a really interesting, favorable case that was decided in the Federal Circuit on November 21, 1996. The case citation is 100 F3d 1389 Gregory Andler v. Shirley Chater, Commissioner of Social Security. The Federal Circuit seemed to state that an error was made in failing to consider that the periods that Gregory Andler worked and exceeded the poverty threshold were periods where his mental illness was in remission between hospitalizations. The Court stated these periods where the veteran worked during 2 summers should have been viewed as unsuccessful work attempts and ordered that he be considered disabled. I can see the applicability of this to my husband's case because when he tried to work in 1990 he was between hospitalizations yet V.A. only considered his wages from 1990 in the decision.

Could someone put up a link to this case?

[jerrbilly]

http://openjurist.org/100/f3d/1389/gregory...-administration

This is a really interesting, favorable case that was decided in the Federal Circuit on November 21, 1996. The case citation is 100 F3d 1389 Gregory Andler v. Shirley Chater, Commissioner of Social Security. The Federal Circuit seemed to state that an error was made in failing to consider that the periods that Gregory Andler worked and exceeded the poverty threshold were periods where his mental illness was in remission between hospitalizations. The Court stated these periods where the veteran worked during 2 summers should have been viewed as unsuccessful work attempts and ordered that he be considered disabled. I can see the applicability of this to my husband's case because when he tried to work in 1990 he was between hospitalizations yet V.A. only considered his wages from 1990 in the decision.

Could someone put up a link to this case?

[free_spirit_etc]

Nice case. And yes, they are supposed to look at the overall big picture; not just snatch out a certain portion of time. The idea is are the able to sustain employment, more than are they able to work on any given day...or even for a period of time.

And especially with certain types of mental disabilities. There are some types of mental disabilities where the person might be able to work effectively for periods of time, but yet not be able to sustain that employment - especially in the rough times.

Now, just getting the agencies to play by the rules....

Free

This is a really interesting, favorable case that was decided in the Federal Circuit on November 21, 1996. The case citation is 100 F3d 1389 Gregory Andler v. Shirley Chater, Commissioner of Social Security. The Federal Circuit seemed to state that an error was made in failing to consider that the periods that Gregory Andler worked and exceeded the poverty threshold were periods where his mental illness was in remission between hospitalizations. The Court stated these periods where the veteran worked during 2 summers should have been viewed as unsuccessful work attempts and ordered that he be considered disabled. I can see the applicability of this to my husband's case because when he tried to work in 1990 he was between hospitalizations yet V.A. only considered his wages from 1990 in the decision.

Could someone put up a link to this case?

[broncovet]

Yes, I read this case, of course it was for social security and not VA, but, interestingly, the claimant was also 100% P and T with the VA. (Gee, I have never heard of social security being tougher than the VA).

Does any one know if this case is pertinent to the VA, that is, is the VA bound by this decision or not...since it was NOT in a VA court (BVA-CAVC), would this case serve as as a precedent?

[free_spirit_etc]

Yes, I read this case, of course it was for social security and not VA, but, interestingly, the claimant was also 100% P and T with the VA. (Gee, I have never heard of social security being tougher than the VA).

Does any one know if this case is pertinent to the VA, that is, is the VA bound by this decision or not...since it was NOT in a VA court (BVA-CAVC), would this case serve as as a precedent?

I don't think the VA would actually be "bound" by the SSA decision. However, it could still be used in an argument (i.e. "in xxxx instance the court found...) So the VA wouldn't be bound to follow the decision, but they could still be persuaded to follow the same line of reasoning. I am not sure this would work at the initial level, as the RO level follows the regulations (or is supposed to) rather than legal arguments.

Additionally, as this is an 8th Circuit court decision, I don't even think the other Circuits within Social Security are actually "bound" by the decision. If Social Security publishes it as an SSR, then it would be binding. Otherwise, it once again, would be useful as an argument (though not binding), except within the 8th circuit. Within the 8th Circuit, it should be able to be used as a precedent - IF the Court has published it as a decision.

There are decisions which are made public, but indicate that they have not been "published" and thus, cannot be used as a "precedent." Other decisions are "officially" published - and can be used as a precedent - but often are only "binding" within that Circuit.

That is just my opinion - based on what I know - and I certainly don't know everything (so I could be wrong).

Free

Edited January 8, 2010 by free_spirit_etc

[Cruinthe]

About two years ago I came to the conclusion that a married couple literally can not live on a 100% VA pension.

My wife works a full time job but we can not afford dental for her, we live in a tiny little house, we drive a used Hyundai, and we are desperately hacking away at our $20,000 in debt with her entire monthly paycheck of $1500.

How the hell are we supposed to save up for a house? What about having kids? A vacation every 5 years? God forbid she gets sick and cant work, we would be living in a trailer somewhere out in the boon docks eating ramen noodles and wearing potato sacks.

So in the last year I have picked up the Housebound benefit, gotten Chronic Fatigue Syndrome up to 60%, with a pending claim for IBS, Fibromyalgia, Sleep Apnea, and some other stuff. I suspect at some point this year I may have to pick up a temp job. Maybe as a security guard or computer tech. Even if the VA finds out and tries to reduce my rating, I will still keep my 100%.

What a miserable way to life, in constant fear and poverty.

Anyhow, there is some research on this over at veteransparty.us that says;

About 4-years ago, a Veteran was referred to me for assistance. He had been rated at 70% for many years but then eventually was “awarded” 100% TDIU which he had been collecting for a couple of years. He showed me a letter from the VA saying that records they received from the IRS and Social Security Administration reflected that the Veteran had been working for about 4-months during the period he applied for a “Total Disability Rating”, and therefore, the VA was going to revoke his 100% TDIU and return him to 70% service-connected compensation, unless he could site a legal reason why the VA should not. So I researched 38 CFR (Code of Federal Regulations) and 38 USCS (United States Code Service) and found the legal reason why the VA could not revoke his “Total Disability Rating.”

The legal reason why the VA could not revoke his “Total Disability Rating” lies in 38 USCS Section 1163, of which I paraphrase as follows: “The disability rating of a Veteran who begins to engage in a substantial gainful occupation after January 31, 1985, may not be reduced on the basis of the Veteran having secured and followed a substantially gainful occupation unless the Veteran maintains such an occupation for 12 consecutive months.

This is a really interesting, favorable case that was decided in the Federal Circuit on November 21, 1996. The case citation is 100 F3d 1389 Gregory Andler v. Shirley Chater, Commissioner of Social Security. The Federal Circuit seemed to state that an error was made in failing to consider that the periods that Gregory Andler worked and exceeded the poverty threshold were periods where his mental illness was in remission between hospitalizations. The Court stated these periods where the veteran worked during 2 summers should have been viewed as unsuccessful work attempts and ordered that he be considered disabled. I can see the applicability of this to my husband's case because when he tried to work in 1990 he was between hospitalizations yet V.A. only considered his wages from 1990 in the decision.

Could someone put up a link to this case?

[free_spirit_etc]

Cruinthe,

I understand the frustration of trying to make it on less than what many other people seem to have. I do think you are on the right track getting your debt paid down though. Debt can be a heavy weight to carry when trying to live within a budget. Yet, I know it gets frustrating sometimes.

I am concerned about your statement about going back to work and "if the VA finds out..." If you are drawing housebound benefits, then aren't you supposed to notify the VA if you got a job? Granted, you would most likely keep your SC rating, but I am not so sure about housebound benefits. But then again, working would most likely generate much more income for you than the housebound benefits do.

That is an interesting case you posted. Two concerns I have with it are:

1. It says the veteran worked while applying for TDIU - yet quotes 38 USCS Section 1163, which addresses benefits being reduced. I think there is a difference in how the VA would handle someone who is working while applying for benefits (especially if they did not report it) or going back to work after the TDIU determination had already been made.

2. Though 38 USCS Section 1163 does serve a useful purpose in trying to assure that a person can sustain employment before reducing benefits, and provides a safety net for those who try to work who are still unable to work full time (more than "marginal") or who are unable to consistently stay employed at a substantially gainful level - I am not certain it bars the VA from reducing someone's benefits. It appears to merely bar them from reducing their benefits on the basis of substantial employment, unless they have maintained consistent employment for 12 months. They still might have a basis to reduce benefits on the basis that your condition had improved.

About two years ago I came to the conclusion that a married couple literally can not live on a 100% VA pension.

My wife works a full time job but we can not afford dental for her, we live in a tiny little house, we drive a used Hyundai, and we are desperately hacking away at our $20,000 in debt with her entire monthly paycheck of $1500.

How the hell are we supposed to save up for a house? What about having kids? A vacation every 5 years? God forbid she gets sick and cant work, we would be living in a trailer somewhere out in the boon docks eating ramen noodles and wearing potato sacks.

So in the last year I have picked up the Housebound benefit, gotten Chronic Fatigue Syndrome up to 60%, with a pending claim for IBS, Fibromyalgia, Sleep Apnea, and some other stuff. I suspect at some point this year I may have to pick up a temp job. Maybe as a security guard or computer tech. Even if the VA finds out and tries to reduce my rating, I will still keep my 100%.

What a miserable way to life, in constant fear and poverty.

Anyhow, there is some research on this over at veteransparty.us that says;

About 4-years ago, a Veteran was referred to me for assistance. He had been rated at 70% for many years but then eventually was “awarded” 100% TDIU which he had been collecting for a couple of years. He showed me a letter from the VA saying that records they received from the IRS and Social Security Administration reflected that the Veteran had been working for about 4-months during the period he applied for a “Total Disability Rating”, and therefore, the VA was going to revoke his 100% TDIU and return him to 70% service-connected compensation, unless he could site a legal reason why the VA should not. So I researched 38 CFR (Code of Federal Regulations) and 38 USCS (United States Code Service) and found the legal reason why the VA could not revoke his “Total Disability Rating.”

The legal reason why the VA could not revoke his “Total Disability Rating” lies in 38 USCS Section 1163, of which I paraphrase as follows: “The disability rating of a Veteran who begins to engage in a substantial gainful occupation after January 31, 1985, may not be reduced on the basis of the Veteran having secured and followed a substantially gainful occupation unless the Veteran maintains such an occupation for 12 consecutive months.

Edited January 9, 2010 by free_spirit_etc