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?

[Pete53]

When you get down to the nuts and bolts of any decision it really is on the VA to get it right. As long as a Veteran does not lie or mislead it is on the VA. Remember that in any award the VA also informs the veteran to notify the VA if their is a change in your condition. If you are getting IU and start working you should notify the VA.

[jerrbilly]

So are you saying he "forgot" that he put in a claim for IU so he "forgot" to inform the VA he was working? Sounds like it was convienent to forget in this situation. There are so many excuses one can use but when it gets down to the honest truth he should have informed the VA of his situation and that he was at least trying out work.

This is being honest. Also, he was working three months full-time while he was applying for IU. This does not define unemployability in my mind.

Jerr

Jerr..

I think I will defend this Vet here. This Vet probably applied for IU while he was not working, and it probably took the VA many, many months or years for the VA to "process" this application. Often times, the Vet does not even really know for sure the status of his application..as I did not for years on end. You can not rely on 800 number responses, and I have not always even been able to count on VA's IRIS responses.

Remember the VA is allowed to "deemed deny" an application. That is, the VA can issue a decision on, say, hearing loss, without addressing IU, which, according to some recent decisions, means his IU was denied. I had my IU application simply dropped by the VA without a decision or an apparent explanation.

But lets say that the Veteran was sure the VA was "processing" his IU claim...not knowing whether or not it would ever be approved. The Vet gets an opportunity to try out this job. I think it is very reasonable for the Veteran to not withdraw his IU claim..or even mention to the VA that MAYBE this job will work out and, if so, he would not be eligible for IU. I think it is very reasonable for the Veteran to simply wait to make sure he is not eligible for IU because his job worked out before he reports it to the VA. I do not think the Veteran is required to report to the VA, "Well, I am trying to work here and MAYBE I am not eligible for IU, before he is even getting IU".

Of course, if he was receiving IU, and he was working with "substantial gainful employment" he must report this to the VA. I have enough trouble reporting actually what happens to the VA, without concerning myself with what MIGHT happen in the future.

If the Veteran applied for IU while he was working, that is probably something else altogether. The Veteran signs and dates the application..that is, that he is representing that he was not working on ....... date to ....... date. The Veteran should never lie or deceive the Va about that. That is fraud. And the Veteran does not have a crystal ball and cant predict, with certainty, that he will be working on ......... date. So, he applies for benefits on what has happened, not on what he thinks might happen.

When the Veteran started working, he likely did not know if it would work out or if it just would be "marginal" employment..and he also did not know if he would ever be approved for IU. Veterans are entiltled to all benefits the law allows. The law makes this distinction between "marginal" and "substantial gainful employment".

[john999]

Part of an IU claim is the part when you have to tell the VA the last day you worked. If you file for IU and then go to work in the meantime that is going to casue a problem. When I got IU I had to submit a document from my employer stating the last day I was in a work status. I got disability retirement so I had the exact paperwork they needed. I don't know how carefully they check this, but if they find you have lied to them your ass is grass.

I really agree with TestVet. If you get IU why would you want to put it at risk. It often takes years to get it. I would love to be able to go back to work and earn a good living. Since that is not going to happen I have to live with IU. Without IU I would be hurting just like all of us who get 100%.

[broncovet]

I also agree with testvet..dont take chances with your benefits. Play by the rules and you will be ok.

[free_spirit_etc]

Most disability programs have programs where people on disability can try to return to work without being penalized. With Social Security – it is the Trial Work Period. With the VA it is the law that says they can not have their benefits terminated on the basis of them working unless they work at more than marginal employment for over 12 months.

SSA’s trial work period is actually a nine month period – and the nine months do not have to be consecutive. Any nine months within a 60 (5 year) month period that the person makes over the TWP amount is counted as one month of their Trial Work Period. This amount is different than the Substantial Gainful Activity amount. For 2010 – the SGA amount is $1.000 and the TWP amount is $720. So any month the individual earned over $720 would be a TWP month, though they earned below SGA.

To qualify for the TWP the individual must report their employment – and they must continue to have a disabling condition.

During the TWP the individual continues to receive full benefits regardless of their earnings. After the individual has completed their TWP (9 months within a five year period) they have 36 months in which they can work and still received benefits for any month in which their earnings are below SGA. They receive no benefits for any month in which their benefits are above SGA (or in which they work 80 hours in their own business).

After those 36 months, the individual no longer receives benefits, but they have a 5 year “Expedited reinstatement” period – in which they can have their benefits restarted immediately, without having to file a new application or wait for their benefits to start while their medical condition is being reviewed.

So they have a safety net, of sorts, built in for those who want to try to work. And it seems like SSA’s program is a bit more involved than the VA’s.

But both of the programs do have something in place for people who want to try to work.

You raise a very valid point of the risks of trying to work. Because both sets of laws only concern the EARNINGS. They state you can’t lose your benefits in the prescribed periods on the basis of your earnings. They do not specifically state that the agency cannot review your condition to see if it is still disabling – and terminate your benefits on that basis.

I imagine a lot of that would have to do with what type of disability you were granted benefits for and what type of work you do. If you were granted benefits for a back condition and you are able to find some type of sedentary work where the employer works with accommodating you – then you would be working though your disability had not improved. If you were granted disability because of a back condition – and you find heavy work as a laborer – then the agency could very well say that your condition is no longer disabling because you are capable of doing heavy work, regardless of what you earn.

Based on my limited knowledge of the VA law – it looks like they just have the 12 month period – and not the extended one that SSA has. But I am not sure, as my knowledge is limited.

And again, a person with a back disability that works as a roofer most likely could lose their benefits even without working the 12 months. Their benefits could be terminated on the basis that their condition improved.

I am not sure how well the trial periods work out in real life. I haven’t investigated it that fully.

I would suggest though, as the subject comes up repeatedly, it would be a benefit for the forum for some investigation to be done – and a better picture of exactly what the rules are, and how they play out be drawn to answer the question.

[free_spirit_etc]

I responded to the Social Security part in another post.

And I agree it would be fraud to work while drawing housebound benefits - and not report it to the VA. And I agree that the vet would (and should) lose the housebound benefits - and may lose part of the 100% rating, especially if rating was given, in part, due to the inability to work.

However, still keep in mind the Vet was mostly expressing being so overwhelmed and frustrated in trying to make it on what he was getting.

Though I agree with the fact that many vets can and do make it on their disability payments, this vet indicated he had trouble doing so. We don't really know why he is in debt. We don't really know what his expenses are. We don't really know what his financial skills are. But he apparently needs more resources (money, skills, something) than he currently has - or he would not be feeling so overwhelmed.

Besides the advice to not try working without reporting it to the VA, and the advice that working at all might not be in his best interest - if he is still reading - I do think if he is open to other kinds of advice / assistance / resources, that may help him - we should be open to trying to help.

Leave no one behind....

like the person above that declared that with HB and 100% he intended to go to work and if the caught him he was willing to lose the HB benefit that is just outright fraud why put it all at risk CHAMPVA and Chapter 35 benies however if a veteran feels he is able to return to the work force more power to them I have not seen where the VA has a program like SSD does where a disabled person can return to the workforce for up to a year without losing thier benefits but they notify SSD ahead of time and if they work past the 12 month deadline then their SS benefits are terminated I haven't seen or heard of the VA running a similar program but if a disabled veteran feels the urge and capability of returning to work by all means that is what they should do but to risk years of fighting to get the benefits from VA I can not grasp why veterans are bound and determined to make problems when they shouldn't just my two cents