tdiu Tdiu -- What Is Considered Work?

[Snake Eyes]

Filing a new claim that also includes a formal TDIU request....

In my original claim, I provided a lay statement showing I had marginal income for the past three years and listed the number of hours I did various activities related to my contract with an online school. My hope was that VA would see the marginal income statement and infer a TDIU (this was before I discovered you can actually file a TDIU claim).

There are a few questions that come up because of the kind of work I did. The C&P shrink stated, "He is able to function on this job because he is required to interact with others online only". That should be seen as a work limitation IMO since there are very few meaningful full-time jobs that are "online only". Combined with the sleep apnea (fatigue and daytime sleepiness documented in DBQ and sleep studies), it should be obvious I can't do a triditional desk job "out there".

So what is considered WORK? When I was working, I was well within the range of "marginal employment"... So, if you're actually only working 13 to 22 hours weekly, is that work for TDIU purposes? If you put in an additional 20 hours sporadically trying to find additional opportunities, is THAT considered work for TDIU purposes?

For the current TDIU claim, it should be a moot point since I'm no longer employed at all... Dr. Bash thinks there might be a CUE in the original claim since they did not infer based on a 70% and a 50% rating (the higher one is for GAD).

[Philip Rogers]

As long as you stay under the poverty level (around $8k-$9k) per yr, you should be good. Personally, I don't feel someone can work "if they're really disabled" and receiving disability. Why risk losing about $36k, tax free. If awarded TDIU you can try to go back to work but you must tell the VA. The VA gives you a trial period of one yr, to be sure it works out, before cutting your TDIU. Social security has something similar. jmo

pr

[john999]

If you work for wages or salary and pay SSA, Medicare and tax you are asking for the VA to look at your TDIU status. If you are dying to work for money do something off the books. You are still taking a chance because your employer, or neighbor may report you for tax purpose of just envy. I have TDIU for last 13 years. With TDIU and SMC I make over 3400 bucks a month tax free. My spouse will get DIC if I die before her. Why would I risk that? You are not going to get rich on TDIU but you will not starve. Disabled people here in the good old USA are homeless and going to bed hungry tonight. Think about it carefully before you mess with your status.

John

[Berta]

"Dr. Bash thinks there might be a CUE in the original claim since they did not infer based on a 70% and a 50% rating (the higher one is for GAD)."

I sure agree with Dr. Bash. The regs on that and within M21-1MR are here under a search.

If you were not employed or marginally employed as defined above, they should have inferred TDIU and sent you the 21-8940 form with the decision for the 70% GAD.

That could potentially ,if it was a CUE, favorably affect your EED when the TDIU issue is resolved.

[Snake Eyes]

Thanks to all for the recent replies. It appears some folks here misunderstood my intent -- I do not intend to work with or without TDIU. I had to quit work this summer and have since applied for SSDI. The question had to do with whether the VA should have considered a statement submitted to show my employment status as an implied request for TDIU consideration. In other words, in the context of a TDIU application (or inferred TDIU claim), what is considered "work"....

Berta,

Thanks for your response on the Dr. Bash "catch". If it is indeed a CUE, that would be great. I've heard CUEs are next to impossible to prove, and this one hinges on the VA recognizing that a document I submitted shows marginal self-employment. Unfortunately, the VA did not list that in their award letter. I remember faxing it but the date was incorrect; my VSO said at the time that he signed the original and submitted it to the VA for me. We're trying to track that down now.

Which brings up a question: IF the VA received the document but didn't review it (maybe they had my claims file somewhere else when the document came in, for example) does it still "count"? I would think if it was received during the "gathering evidence" phase, they should have reviewed it with all the other stuff in the file.

[Gastone]

Snake Eyes: The following is my Readers Digest version of my recently DRO Hearing award of IU T & P this past 6/27/14. I've been a 90% SC Nam vet since 2011. My original "Inferred TDIU claim" denial was 2012. Had (2) NOD hearings 2010 & 2012 pending. My 6/27 Hearing was suppose to be for 2010 NOD not the TDIU. I opted for "Informal Hearing" at last moment. DRO said he would address IU claim also. Workied for me All major $ issues and great retro awarded.

The DRO said that me having a copy of my VA Vocational Rehabilitation Denial Letter in my file, was the best evidence possible to support being eligible for IU. That letter indicates that your SC conditions preclude you from participating in VOC Rehab. So no matter what Level of education or training you possess, the Voc Rehab Councilor has determined that you can not be retrained for "Gainful Employment," even in a sedentary job. This Voc Rehab Denial Letter becomes "New and Material Evidence" in regards to your IU denial.

If you read the 38 CFR regarding VARO Denied Claim Review section, you will see that any "N&M Evidence" submitted after a denial automatically triggers the VARO Claim Review, which is handled by a Senior Rater or DRO. The main difference is the "deference" to the original denial decision and the amount of time to get a new decision, continued denial or claim granted. A new supplemental Statement of case prepared by the Senior Rater or DRO is required.

I think you would benefit greatly, give it consideration.

Semper Fi

Gastone

[Snake Eyes]

Thanks for the info.

I have another possible issue. When I opened the claim by phone, I talked about severl issues. When CSR suggested making an informal claim via that call, it looks like he only did it for TDIU.

Will there be issues with the fully developed claim if the phone rep only listed TDIU? I know it might affect the effective dates of the non-TDIU issues, but would it cause a problem otherwise? Dr. Bash's IME letter addresses all issues and not just TDIU.