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Filed For Tiud But Still Working


Meloal

Question

I am service connected for multiple disabilities including; diabetes type 2, lumbar disc disease, peripheral neuropathy in both legs and a hearing loss. I also have been diagnosed for hypertension but not yet rated. The combination of these conditions are making it very difficult for me to maintain my job of 26 years. Everyday I suffer great pain in my back and feet to the point that I just feel like walking away from the job. I recently filed for unemployability but fear the claim will be denied based on me still trying to work. I am afraid to resign or quit at this point because of my financial situation. Do I have to my job in order to support my claim? Do anyone have any thoughts or experience to share on this subject?

Mel

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  • HadIt.com Elder

You cant be working to get IU.

You need a Doc to take you off of work and you may get some other disability benefits as well like Long term disability.

You should file for SSD or SSDI if under 62.

J

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I am service connected for multiple disabilities including; diabetes type 2, lumbar disc disease, peripheral neuropathy in both legs and a hearing loss. I also have been diagnosed for hypertension but not yet rated. The combination of these conditions are making it very difficult for me to maintain my job of 26 years. Everyday I suffer great pain in my back and feet to the point that I just feel like walking away from the job. I recently filed for unemployability but fear the claim will be denied based on me still trying to work. I am afraid to resign or quit at this point because of my financial situation. Do I have to my job in order to support my claim? Do anyone have any thoughts or experience to share on this subject?

Mel

You do need a doctor to state that your unable to work.. not just any doctor, but a doctor expert in the are of back injuries.... even then you might have a hard time getting IU if your working....

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No need to fear about your claim being denied. It will be!

I am curious, why would you file a claim for Total Disability based on Individual Unemployability when you are still currently employed?

You have filed a claim with the government for benefits only available to someone who is unemployed. By your own post, you indicate you were not and are still not unemployed. By your own admission you have filed a false claim against the government.

You might want to do a google search on Keith Roberts, the Feds jailed Mr. Roberts on wire fraud. The crux of his case was the Feds rounded up and talked to people 30+ years after an accident and since no-one could remember him they charged him with fraud and convicted him (even thought the duty logs clearly indicate he was working on the flight line when the accident occured).

I am sorry if the tone of this is overly harsh, but these are the types of claims that allow people to scapegoat disabled veterans.

I am sure you are in pain every day, I have had spinal arthritis for 26 years now and in the last couple of years picked it up in my feet. Recently other medical problems have caused them to withdraw all my NSAIDs medication and I react to opiods. It sucks!

You really do need to get a strong medical opinion from a qualified physician covering all your disabillities and be sure to have them fill out the VA form for each of those disabilities. I suspect when the realize you were working when you filed the claim they will do one of two things. They may just make a quick and dirty decision denying you for TDIU since you are currently working (let us hope that is what they do). Or they may look into each and every one of your ratings seeking an excuse to reduce them to push you under the threshold for TDIU. Hopefully you have held most all of your current ratings for at least 5 years (that will make it more difficult for them).

Edited by 71M10 (see edit history)
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http://asknod.wordpress.com/2012/01/18/roberts-v-shinseki-a-miscarriage-of-justice/

In this latest Asknod update, it reveals again a little bit of how intricate this situation was.

I discussed this case with Bob Walsh and Leone many times........

I do feel this was an exceptional situation and that VA would not go to these lengths again at all with any veteran.........but I often seem to remain on the fence , after studying the evidence and reviewing this case for years.

Still -I do consider the Roberts issue as a scapegoat issue and vets should be aware of it.

I think they will simply deny the TDIU issue here for this vet or,instead, possibly award 100%......dont know

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<<<<<<<<<<<<<<<the claim has no chance. in my opinion>>>>>>>>>>>>>>> Au contraire, ma cher. VA jurisprudence only dictates he will lose at the Puzzle Palace. The outcome of Steve Hamer's appeal to the Fed, Circus may reverse what the CAVC has decided on the subject. Always remember, It must be meaningful employment in order to be denied. Employment to while away the hours with no meaningful wage or consistency (read as working only when actually, physically possible) is not considered employment in the context of TDIU. See the following:

http://www.uscourts.cavc.gov/documents/Hamer_07-3181_published_opinion_July_27.pdf

Mr. Hamer subsequently appealed to the Fed. Circus on November 9th, 2011: http://asknod.wordpress.com/2011/11/08/fed-cir-hamer-v-shinseki-hes-baaack/

I believe this will be the last word on what constitutes "meaningful employment" vis-a-vis TDIU, Whether being employed when in extensive pain is considered "viable employment" and mostly whether someone who is at the end of any meaningful employment can raise the issue in preparation or anticipation of incipient unemployment is the question. Why does one have to face financial ruin for a set period (one year) in order to prove he is unemployable or "underemployable" due to rated disabilities? An interesting concept and one that bears Meloal keeping the iron in the fire while awaiting the outcome of Mr. Hamer's case.

As for VA's potential retribution, a letter timely submitted by Mr. Meoal explaining this enigma to them would go a long way towards justifying the filing and avoiding the jackbooted OIG thugs. 71M10 raises a point but Mr. Roberts, by all outward appearances, portrayed his circumstances differently when confronted. Had he stayed with his original story rather than claiming an alternate PTSD stressor as justification for keeping his rating, we might not be so familiar with his name or his plight. In any event, his incarceration and subsequent divestment of his ratings was patently designed as a warning shot across the bow of would-be fraudulent filers. Surely no one can argue that.

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  • HadIt.com Elder

Asknod, Your really are correct. But you are talking very long term and possibly CAVC action. Years down the road.

Then you have to NOD and go to the BVA. They dont have the comprehension so they also will deny it and finally it gets to court.

Then it gets remanded with opinion back to the BVA and they keep passing it back and forth because they dont agree. In the mean time the vet retires or quits working and files for 100 percent and it becomes a moot point.

At the RO. lets face it. If you are working, an IU claim is 99 percent dead in the water.

J

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I agree with JBASSER about the chances for this TDUI claim while still working. I strongly disagree with 71M10 suggestion that fraud is being committed. Where is the fraud? This Person told the VARO that they were working. Sorry, I just think planting fear in a person for trying to file a claim is not helpful.

Here is my suggestion:

1. Have your treating Dr. give clear and accurate work restrictions.

2. If your work can't accommodate your restrictions or the amount of time spent off work, have them fire you for medical reasons.

3.File for SSDI and resubmit for TDUI.

4.File for unemployment.If they accept that you were fired for medical reasons they can approve your claim.You must actively look for work. Nobody says you can't keep looking for jobs with the same physical demands that got you fired in the first place.If you have a valid claim this will buy you time for you disability claims to maybe get approved.

I was on leave without pay from the Federal gov. and nobody bothered to tell that I could draw unemployment because they wouldn't let me work on light duty.

Just my opinion. It worked for me.

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  • In Memoriam

I totally agree with Jbasser first post. If your doctor takes you out of work then you are not employed. He can further determine if you are unemployable. If he determines you are unemployable then you would be able to apply for IU. This is just the way the system is.

As far a Keith goes. This was a very terrible incident that he witnessed and participated in while in Italy. Later he said he was not only in Naples Italy but in other places that he was not. This was a terrible choice for him to make that concerned himself and his family. Keith has been in jail for several years now. I would like to hear when he gets out. Last I heard he was still on appeal about this mess that he had gotten into.

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For anyone interested ----Keith Robert's Petition was shot down by the Supremes:

http://www.veteransnewsnow.com/2012/03/14/veteran-awaits-word-from-u-s-supreme-court/

His Federal Circuit Court case is here under a search:

http://www.ca7.uscourts.gov/

And his CAVC Cases are here:

at

http://search.uscourts.cavc.gov/search/

1. . 05-2425 (Quick View | Details | Similar)
STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 05-2425 KEITH A. ROBERTS, APPELLANT, V. ERIC and dissenting in part. GREENE, Chief Judge: Veteran Keith A. Roberts appeals through counsel an separate compensable ratings for dysthymia and depression, (3) dismissed Mr. Roberts' motions that various

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2. . 05-2425 (Quick View | Details | Similar)
STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 05-2425 KEITH A. ROBERTS, V. APPELLANT, action may not be cited as precedent. Veteran Keith A. Roberts appeals through counsel an

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3. . 05-2425 (Quick View | Details | Similar)
Veteran Keith A. Roberts appeals, through counsel, a secondary basis for several other conditions. Mr. Roberts argues for reversal of the Board's determination

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4. . (Quick View | Details | Similar)
No. 05-2425 Keith A. Roberts,

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5. . 05-2425 (Quick View | Details | Similar)
STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 05-2425 KEITH A. ROBERTS, V.

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6. . 05-2425 (Quick View | Details | Similar)
STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 05-2425 KEITH A. ROBERTS, V. APPELLANT,

I caught something from 2012 at the CAVC which might be a pending CAVC case he still has.Havent had time to read the entire docket on that.

I have know a few vets who did what he did regarding their claims ----Throw a lot on the wall to see what sticks. This is not some dumb man,.... Roberts won a CUE claim, but you have to consider the many nuances of what went on here.....lots to it all.I fault the VA, the VSO he had, and the veteran himself.

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"Always remember, It must be meaningful employment in order to be denied. Employment to while away the hours with no meaningful wage or consistency (read as working only when actually, physically possible) is not considered employment in the context of TDIU. See the following:"

Part of the rating is mental. No chance for TDIU if he has recent work history.. If it were all physical and the employment marginal, maybe

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I agree with JBASSER about the chances for this TDUI claim while still working. I strongly disagree with 71M10 suggestion that fraud is being committed. Where is the fraud? This Person told the VARO that they were working. Sorry, I just think planting fear in a person for trying to file a claim is not helpful.

Here is my suggestion:

1. Have your treating Dr. give clear and accurate work restrictions.

2. If your work can't accommodate your restrictions or the amount of time spent off work, have them fire you for medical reasons.

3.File for SSDI and resubmit for TDUI.

4.File for unemployment.If they accept that you were fired for medical reasons they can approve your claim.You must actively look for work. Nobody says you can't keep looking for jobs with the same physical demands that got you fired in the first place.If you have a valid claim this will buy you time for you disability claims to maybe get approved.

I was on leave without pay from the Federal gov. and nobody bothered to tell that I could draw unemployment because they wouldn't let me work on light duty.

Just my opinion. It worked for me.

TO BE CLEAR I DID NOT SAY HE COMMITED FRAUD. I indicated he filed a false claim, the false clamis act is in 31 U.S.C. Even if you file a false claim in error without criminal intent you are liable. There are some protections for veterans in 38 U.S.C. (that were ignored in the case of Roberts). Was I Trying to plant fear in a person trying to file a claim, you bet I was! A veteran who is working, filed a claim for TDIU, every veteran in the same RO that has filed after him gets to wait behind this dead/zombie claim. He indicates he has a hypertension claim pending, he is rated at 80%, unless he has no individual rating at 40% or above they must consider him for individual unemployability as part of his current claim.

I can empathize with his situation, I understand the issue/s of chronic pain, but filing a claim for unemployability when you are still working only screws things up more!

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If you read over the regulations, they use the term "substantial gainful employment" (SGE) in regards to TDIU. It is differentiated from "marginal" employment, and that difference means that the Veteran earns LESS than the poverty level (about $10,000 per year plus or minus dependents) in the most recent 12 month period.

You can have "marginal" employment and still get TDIU, you just cant have SGE.

The "Roberts" case is an example of the VA throwing its enormous resources against Vets, that is, if the Vet ticks them off. And Roberts ticked the VA off.

He was no doubt obnoxious to VA employees, but this is what depression/TDIU is about.

What can we learn from Roberts?

Well, dont be obnoxious to VA employees/judges. Everyone has their limits.

My advice is that if you have SGE, you should promptly inform the VA of same. If you have marginal employment, then you can proceed with your TDIU claim.

SGE is not compatable with TDIU.

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TO BE CLEAR I DID NOT SAY HE COMMITED FRAUD. I indicated he filed a false claim, the false clamis act is in 31 U.S.C. Even if you file a false claim in error without criminal intent you are liable. There are some protections for veterans in 38 U.S.C. (that were ignored in the case of Roberts). Was I Trying to plant fear in a person trying to file a claim, you bet I was! A veteran who is working, filed a claim for TDIU, every veteran in the same RO that has filed after him gets to wait behind this dead/zombie claim. He indicates he has a hypertension claim pending, he is rated at 80%, unless he has no individual rating at 40% or above they must consider him for individual unemployability as part of his current claim.

I can empathize with his situation, I understand the issue/s of chronic pain, but filing a claim for unemployability when you are still working only screws things up more!

TO BE CLEAR I DID NOT SAY HE COMMITED FRAUD. I indicated he filed a false claim, the false clamis act is in 31 U.S.C. Even if you file a false claim in error without criminal intent you are liable. There are some protections for veterans in 38 U.S.C. (that were ignored in the case of Roberts). Was I Trying to plant fear in a person trying to file a claim, you bet I was! A veteran who is working, filed a claim for TDIU, every veteran in the same RO that has filed after him gets to wait behind this dead/zombie claim. He indicates he has a hypertension claim pending, he is rated at 80%, unless he has no individual rating at 40% or above they must consider him for individual unemployability as part of his current claim.

I can empathize with his situation, I understand the issue/s of chronic pain, but filing a claim for unemployability when you are still working only screws things up more!

Sorry 71M10, I reread your post and your correct. I have no issue with you. I also read about Keith Roberts and his legal issues which the VA spared no expense in investigating. Very disturbing.

What can Meloal do to fix this before the VA takes action? Can just write them and withdraw his claim?

Is it that simple? I hope so. I think the point you made about the VA reviewing all his current SC disabilities and reducing them is a real danger.

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Forgive me if I say using Keith Roberts as a metaphor for VA's jackbooted ratings thugs to enter in and start decimating Meloal's ratings is a little overblown. I have jerked their chain in a similar fashion continuously for coming on six years. I'm now at the Court getting ready for the sit down meet and greet with Will Gunn and friends. What I have not done is start making slanderous accusations to the VAOIG accusing the Detroit VARO of misfeasance and malfeasance. This was the predicate for the OIG's fishing expedition into Keith's claim. It was grossly unfair, he was denied due process and the adjudication occurred in a kangaroo court of the US District Court system. Keith was in jail before he knew what hit him. He also is on the hook for all the benefits paid. I feel great compassion for him. PTSD can make you do strange things. Had he had a good VSO during all this, perhaps it would not have transpired. Not all of us have minders to watch over us. VA insists Keith can just resubmit his claim for PTSD based on this new stressor but even I can see it would entail a long journey with many appeals. VA has made their minds up on this one and I doubt he'd prevail.

In sum, Meloal is simply exploring the possibility of brand new jurisprudence that may set precedence. He is in no way concealing his employment. He may well be denied but not for subterfuge. A false claim entails a conspiracy to defraud the other party. If you enter into the claim without deceit, no one can claim the request is based on fraudulence. The difference between the two sets of circumstances are like night and day. VA is many things. They have ploys to entice the ignorant into damning themselves through their own statements. That is legend. If you disarm the situation and offer all evidence honestly, you may create new TDIU law as Mr. Buie did. http://asknod.wordpress.com/2011/09/27/cavc-buie-5-v-shinseki-0-2011/ Just because it isn't written doesn't mean you can't get there from here. I intend to get the VA to accept my Air America records as part of my "official service department records"- something that has never been done before. By the same token, I am attempting to get the CAVC to see my medical records from a private (civilian) hospital during service in a remote/ isolated operating location in NW Thailand as being part and parcel of my "service medical records". The government paid for the doctors and it occurred during the war. Just because it hasn't been done yet doesn't mean it can't be. To me, VA law is the art of the possible. It's also almost always done successfully at a very, very high level - accompanied by a lot of bellowing and screaming and takes 21 months to reach fruition-much like mating elephants.

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While I agree with asknod "overblown" assessment, I get there through a different route and, come to a different conclusion as follows:

Applying Roberts to our own situation, sometimes would be the logic error of generalizing on too small of a sample size. If your "Uncle Charlie" gets up one morning and puts on a pair of PJ's he used to paint with the previous day, and his home was suddenly struck by space junk killing him instantly, this does not mean that we should never use old PJ's as painting clothes or we will suffer the same fate.

This being said, even tho the chances of VA retaliation are remote, the risks are very substantial. For example, while you may well be able to get away with "not looking" before you walk across a quiet street, the risks of doing just that are too high to take the risk. That is, the risk/benefit ratio is simply highly unfavorable to make that choice.

In a similar way, I would conclude that either being obnoxious to VA employees or filing for TDIU while maintaining SGE would be a highly unfavorable risk reward...the risks are too high and the rewards too low. Dont do it, it isnt worth the risk.

However, this does not mean that it is unwise to persue all the benefits due you, even if you have to be highly persistent to get them. Perhaps, in the 1970's when you applied for benefits you never heard of obstructive sleep apnea, but that does not mean the sarge punching you in the face breaking your nose did not cause the malady. Or, maybe a wild stray bullet caused injury to your woody woodpecker, and, you knew nothing of SMC when you applied.

When most rookie Vets go to their VSO, they think they are "applying for VA benefits" and dont even know they have to list each malady seperately...I know I figured the VA would check the records and see which one to which I was eligible. WRONG!

My VSO did not ask me to make a list of maladies I think may have been caused by service...nnooooooooooooooooooooooooooooooooooooooo.

In the VSO charter, the VSO is to "cooperate with the department of Veterans affairs"

http://uscodebeta.house.gov/view.xhtml?hl=false&edition=prelim&req=granuleid%3AUSC-prelim-title36-section50302&num=0&saved=%7CZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGUzNi1zZWN0aW9uNTAzMDE%3D%7C%7C%7C0%7Cfalse%7Cprelim

(Item number 4), supra.

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One last observation. The CAVC has admonished the BVA repeatedly in recent years to consider a TDIU automatically in cases like these if it can be granted. If he had simply filed for 100% Schedular and they denied it, VA would still be obligated to consider the IU as a lesser rating but still one for application Just because he asks for or it to be considered does not make him an instant doctor or lawyer for that matter. If he is pro se, great latitude is granted for the "right to remain stupid" as they view it. Since this non adversarial process which is Veteran friendly cannot convict him of something he requests openly, there is no subterfuge or fraudulent intent unless or until he fabricates evidence to obtain a higher rating. As a matter of law, VA now considers any request for increase a request for the "highest and best" rating automatically (see AB v. Brown 1995). TDIU is for consideration automatically. If it cannot be supported, the Veteran will not prevail. No harm, no foul. Vet goes home empty handed- but- Veteran goes home-not to jail.

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  • HadIt.com Elder

If the VA knows a vet is on SSDI they are supposed to infer possible TDIU. They almost never do it. If the VA has any evidence the vet has a serious employment handicap or roadblock to employment they are supposed to consider TDIU. My experience is that if you don't apply for it, you don't get it. 42 years ago my private doctor said I was unable to work. I never applied for TDIU since I did not even know what it was at the time. I was never considered for TDIU, nor was I ever asked about it for the next 40

years until I put in the paperwork for it. In my original claim I was not even asked if I was employed.

John

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Feel like a mushroom in the basement, did you? We all lived down there at one time of another, sir. That's why God invented Hadit.

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Bless you for that one ASKNOD..... have you heard the SVR hadit 16th anniversary show yet????? It is in SVR archives Jan 30, 2013......

Our producer said the Emmy still hasn't arrived yet in his mailbox.unsure.png

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