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?

[free_spirit_etc]

it's easier to talk sense to a SS employee not so easy with VA employees

I used to think that before I spent two years fighting SSA for our survivor's benefits. Some SSA employees can also play some not so nice games.

But, as a general rule, I would have to agree - even when you are in the tunnel, the light at the end does not seem quite as far away.

Free

[cowgirl]

Cruin I get the impression you have a 100% rating and VA health care for yourself. I am guessing your rating is 100% or 100% IU? Sorry to hear that you have these conditions very young and planning a family and all. Personal finances do strain relationships, is there any credit counseling or help you can request in your community? I sure wish you the best and hope you ask for help without sacrificing any hard earned benefits. Do you have a VSO? or?

Free you've been generous posting very sound advice and thoughts. Even got me thinking, as usual! Thanks dear~!

Best to y'all,

Cg'up!

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.

[cowgirl]

Maybe this question and a possible answer can help others too.

Where do we find the regulation statement the VA uses to incorporate the 'last day actually earned income' for IU awards?

It seems the posted case worked around the barriers with 'medical evidence'. Gee that sounds familiar. Glad for vets that recieve whats due.

Yes it's the last day you actually earned income mine was June 2002 the VA did the heart cath in Oct and SSD was approved 4 months later back dated to June then 5 months of SS wait period check was effective Dec 2002 it's easier to talk sense to a SS employee not so easy with VA employees

Edited January 12, 2010 by cowgirl

[free_spirit_etc]

You might want to do a search of BVA decisions. I am sure there have been appeals on the TDIU issues at that level. And there are probably some decisions that discuss employment issues and the regs involved.

I haven't searched it yet. But I do like searching BVA decisions, because they give you information on the reasoning the VA uses when an issue gets to that level - along with the regs and court cases that support such reasoning.

However, as has been pointed out - the reasoning also often doesn't apply until you get to that level. The RO can do the decisions that fit fairly neatly into the boxes. The BVA has more latitude to interpret laws and regulations as well. So even the BVA reasoning might only take you so far with the RO. And then you wait....

Free

Maybe this question and a possible answer can help others too.

Where do we find the regulation statement the VA uses to incorporate the 'last day actually earned income' for IU awards?

It seems the posted case worked around the barriers with 'medical evidence'. Gee that sounds familiar. Glad for vets that recieve whats due.