Low

[mojopixie]

I

Edited July 27, 2017 by mojopixie

[mojopixie]

I

Edited July 27, 2017 by mojopixie

[mojopixie]

W

Edited July 27, 2017 by mojopixie

[Berta]

I don't think you should include any IRS forms unless they ask for them but the amounts should correspond to the amounts of earned income you are putting on the form.

“A total disability rating based on individual unemployability

may be assigned where the schedular rating is less than total

when it is found that the disabled person is unable to secure

or follow a substantially gainful occupation as a result of a

single service-connected disability ratable at 60 percent or

more or as a result of two or more disabilities, provided at

least one disability is ratable at 40 percent or more and

there is sufficient additional service-connected disability

to bring the combined rating to 70 percent or more. 38

C.F.R. § 4.16(a) (2009).

Substantially gainful employment is defined as work that is

more than marginal and that permits the individual to earn a

living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991).

Specifically, a "substantially gainful occupation" is one

that provides annual income that exceeds the poverty

threshold for one person, irrespective of the number of hours

or days that the veteran actually works. Faust v. West 13

Vet. App. 342, 356 (2000). 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. 38 C.F.R. § 4.16(a).”

http://www.census.gov/hhes/www/poverty/data/threshld/index.html

This site does not have the 2010 poverty threshold figure yet but:

"I have not made more than $6500 during any year since then"

that seems to put put you below the poverty threshold for TDIU consideration.

[Hoppy]

Any statement that was made by the C&P examiner that was incorrect must be immediately brought to the attention of the rater. Do this before they make a decision based on the C&P exam. I recently tried to have an entire exam thrown in the trash and demanded a new C&P prior to the decision because the C&P examiner stated that the veteran was unemployed when in fact he had been totally disabled and receiving SSI. I argued that any GAF score or any other assessment made by this C&P examiner was based on a superficial examination in which the C&P examiner made up the evidence. There is a big difference between working and the statement you made. Any inaccuracy that would show that you are more disabled than the C&P examiner noted should be brought to the attention of the rater and your primary care doctor. Have a clinician note the inaccuracy and submit the doctors notes as evidence. If you have a treating mental health provider have them note your current condition. If not the use your primary care doctor.

If it were me I would submit a statement in support of the claim directly to the RO and have your primary care doctor or treating mental health provider enter into the electronic the following statement.

“I had not had gainful employment in 7 years and was only able to work about 5-10hrs a week from home, but that I had not been able to work for the last few months, and even on good days still only averaged $300-400/month.”

Also, submit the decision I pasted below.

A medical opinion based upon an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

[john999]

Getting low balled and falsified and inaccurate c&p exams is just standard. Everyone of mine has had some major mistakes in it and I have had many. Get the decision and get the NOD in and get the lawyer. That is my advise.

[Berta]

"Any statement that was made by the C&P examiner that was incorrect must be immediately brought to the attention of the rater."

Hoppy you are SO right here!

I feel that this could be done in a Reconsideration Request or as part of the NOD-or even stated in an Iris complaint with substantial reason for why the statement was wrong.(but that would not be a formal NOD)

I see the NOD as the first avenue of attack.One of my husband's claims and my daughter's DEA claim were both turned around with their receipt of the NOD I prepared for them with a proper decision faster than usual.

I also prepared NOD for my past claims that referred to significant evidence which I attached.If the evidence was not acknowledged in the resulting SOC it gave me more reason to support the claim by bringing that fact up -ad finitum- along with the evidentiary regs in 38 CFR.

If a vet or widow is not going to file a NOD that begins to attack the decision-why not just file a generic one as soon as they get the decision and then await the SOC?

I also see here that some vets are not filing the NOD until the last minute.