hypertension Filed For Tiud But Still Working

[Meloal]

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

[broncovet]

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.

[kymike]

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.

[FormerMember]

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.

[broncovet]

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.

[FormerMember]

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.

[john999]

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