tdiu Need Advice Weird Va Status

[dav_marine72]

Hi Everyone,

I'm preparing for the house to fall down and I want to be ready to fire back ASAP if needed. Long story short. I have 12 service connections. I am 94.3 on the schedule as of right now (90%). I was awarded TDIU back to July 2009 in 2010. I was drinking heavily, taking opiates and benzos because I was unable to go back to work after a L3-S1 fusion gone wrong. I was able to start working from home in July 2011.

Please don't preach. I was in a bad place and thought going back to work would get my head straight. I worked from July 2011 to January 2014. My performance at work started going downhill quick in January of 2013. Mentally and physically I never should have gone back to work. So I was given a bad review in June 2013, written up in November 2013, and fired in January 2014. Mind you I was receiving SSDI (2009-2011) and notified them I was working. I did the trial work program from July 2011 to July 2012. Then my SSDI stopped.

I had VA lawyers because my case was at the U.S. Court for 4 increases back to 2000. I never received a form from the VA about reporting income until July 2013. My lawyer advised against telling them because she believed I would get 100% on the schedule back before TDIU in 2009. I sent the income form in soon after receiving it. I was making well over the minimum $$$$. Just before I was fired in January I received a notice from the VA stating they never received my income form and were proposing a reduction. I re-submitted the form and by then had been fired and began receiving SSDI again because I was still under their probation period. My then lawyers said they asked for a hearing for my reduction. Soon after this my primary lawyer got into a car accident and was indisposed. My secondary attorney took the case over and was not well informed and dropped the ball in my opinion. So based on that and my primary lawyer being unavailable I asked for them to let me go and all claims to my back pay. They obliged. Sorry for the long story but I feel the background was needed.

I never received a letter for a hearing on my proposed reduction. Mind you since my TDIU decision my remand from the USCAVC came back to the RO and they bumped up my lower extremity rating from 10% combined to 40% for my right leg, 20% for my left and granted P&T. So now I have a status of my reduction being in the rating phase. Mind you I never had the hearing. To complicate matters further I filed for two new service connections in April (Last month) and I'm being told a decision was made and is in the mail (28 days later). I have since gone from 300MG + a day of OXY to subuxone. I am in all kinds of mental health programs and groups now. I'm freaking out about the possible reduction and loss of P&T as that is my family's only insurance now that I can't work. Not sure if I should be asking for TDIU again? Can they reduce without a hearing? I still have 7 issues on appeal from the remand between the BVA and USCAVC and they are supposedly at the RO.

Edited May 22, 2014 by dav_marine72

[Berta]

You can try to claim 100% P & T under Extrascheduler consideration.....and it could be the same EED as the TDIU was.....

I just dont know how you could do that yet.......I need to think about it.....my philosophy is that nothing is impossible.

Are you sure your wages were over the poverty level guidelines? Could they in any way be considered marginal employment?

We havediscussed all that here available under a hadit search.

When did the reduction notice arrive?

Did they give you any appeal rights at all?

[Berta]

Will this case help?

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp07/Files1/0709298.txt
In part:

"After conducting a thorough review of the entire record, the
Board finds that the veteran's employment as a county
commissioner does not demonstrate that he is employable.
Further, the evidence of record does not demonstrate that the
veteran was capable of substantially gainful employment at
the time his TDIU rating was terminated in June 2006. The
veteran's status as a county commissioner, while paying him
more than that used to determine marginal employment, does
not constitute marginal employment on a facts found basis.
Accordingly, because he was not employable and not able to
engage in substantially gainful employment because of his
work as a county commissioner, the termination of his TDIU
rating was not proper and the rating is restored.


ORDER

The termination of TDIU was not proper, and TDIU is restored."

-------------------------------------

"My lawyer advised against telling them because she believed I would get 100% on the schedule back before TDIU in 2009."

She was wrong, in not telling them that, the VA has to know the truth.

But she was right as to the 100% schedular. That is what I meant in my reply.

I suggest you seek another lawyer.......you should have been given appeal rights.

Others will offer suggestions here too.

Vets with 100% Schedular can work at high paying jobs and still keep the comp, as I understood that regulation....

Please correct me someone, if I am wrong.....

Former VA Sec Max Clelland is a good example of that as well as Chesty Puller's son Lewis, both catastrophically disabled by Vietnam War, Lewis was a lawyer at VA Central for years.and it took Max Clelland 2 hours to even get ready for work., as VA Secretary.

I dont know their actual VA ratings or even if they claimed and if they accepted SC comp but that isnt the point here.

Edited May 22, 2014 by Berta

[dav_marine72]

Hi Berta,

I was definitely over the poverty level. I was in IT 18 years prior to not working for 2 years. I received the reduction notice in January 2014 right before I was fired for performance reasons which are service connected related. I made a computer change which took down company resources and cost the company $$$$$$. I was on a large dose of OXY and just wasn't thinking right. The company had been complaining about my performance for a while. My pain, anxiety, and panic attacks all increased after starting to work again. They put in the notice if I did not respond the reduction from 100% to 90% would be effective in my March payout. That never happened. They stated I could have a hearing. Prior to firing my attorneys I was told they requested the hearing and were waiting for notice. I never received anything from the RO since then. Yesterday while waiting in between appointments I went to the RO and was told a decision on my remands were coming. I since looked at ebenefits and it appears a decision is coming on my reduction, not my remands. Mind you I have that weird 28 day decision coming for two new service connections also. I only need 2 10s or my mental from 50 to 70% to get 100% schedular. My mental is on appeal since 2005. I don't know if they didn't schedule a hearing because they are leaving alone or just trying to reduce me to 90%.

[Berta]

more info here on extraschedular:

Rental guy made a good point .....did the VA ever consider you for extraschedular prior to the TDIU award????

[Berta]

"I don't know if they didn't schedule a hearing because they are leaving alone or just trying to reduce me to 90%."

I think you should fax them as well as IRIS them that you want a hearing,. Tell them of the lawyer problem.

Fax numbers are here under a search for every RO, IRIS is at www.va.gov, "contact us" thing. File the IRIS as a complaint.

"Prior to firing my attorneys I was told they requested the hearing and were waiting for notice. I never received anything from the RO since then."

Maybe they got the notice. Tell all of this to the VA.

If you dont have a Fax machine you can google Zero Fax..it is free.

[dav_marine72]

I don't believe they considered extraschedular at the time of my TDIU rating. Very interesting. I always thought it was BS that just because I suck it up and do some work I am penalized because I decided to work with computers and have skills that get paid top dollar. Even when I did work during this period, everyday was a struggle for me.