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).

[Gastone]

Snake: Anything that was not provided with the FDC filing, that the VA rating Dept (gathering Evidence Section) determines it needs to forward the claim to the VA Rater, will cause your claim to go from the FDC status to the Traditional Claim status. My recent FDC award of a Secondary Issue as SC was completed in 5 months. In the past it took at least 16 months on any of my traditional claims.

You mentioned "Marginal Income" from a computer job. One mans idea of Marginal Income is the VA Idea of Gainful Employment. Being deemed able to do sedentary work, no mater what, can put you in a position to earn in Excess of the VA "Gainful Employment" figure of $12,???.00, this can jack your IU claim. Was your "Marginal Income" in excess of the VA $12K and was it from self employment? (VA Gainful Employment Income for 2014 is US Poverty Level Income for "one" Person $12,???.00)

Regarding your CUE discussion. That is a very difficult appeal, if needed. Your numbers indicate "Infered IU Claim." However, "inferred" does not mean that the filing of the IU claim is automatic. It is your responsibility to actually file the IU claim after being notified in the recent Comp award claim Letter that you eligible. When I received mine, within 2 days my IU claim was filed.

Get your IU Awarded, then you can address all other issues. IU is the Large $ Award.

Semper Fi

Gastone

[Snake Eyes]

Thanks, Gastone. Yes, all income under $12,00 BEFORE taxes and I was self-employed.

It is in the Gathering evidence stage and I've not sent anything since starting the claim informally by phone in June.

I should have DBQs from Dr. Bash's exam this week -- and all of the FDC will be submitted by my VSO next week.

I'm afraid to separate them since Bash's IME/Nexus letter addresses all issues, including the TDIU and the CUE. If I separated them, the VA might have an excuse to deny one if I submit Bash's letter twice.

I'm hoping my VSO has dealt with this kind of thing before. FWIW, I 'm a service-connected worrier :-)

[Berta]

"I'm afraid to separate them since Bash's IME/Nexus letter addresses all issues, including the TDIU and the CUE. If I separated them, the VA might have an excuse to deny one if I submit Bash's letter twice."

I am not sure if I understand what you mean here, as to 'separating them' ...I assume you mean the two claims..one for PTSD and one for CUE.

"the VA might have an excuse to deny one if I submit Bash's letter twice."

Not necessarly...... but this is my concern......

A CUE claim must be based on established medical evidence at time of the alleged CUE.

Recently I talked to Dr. Bash after our last radio show we did with him about an unrelated matter..

But he also mentioned he was willing to help me with my 2 pending claims. ( I had 2 great IMOs from him many years ago for my AO DMII death claim)

I told him I would not hesitate to call him for another IMO if I need one but I forget if we discussed why I don't think an IMO is needed for my pending claims....

One is a brief 1151 claim with one piece of evidence from my VACO FTCA case.whereby a VACO cardio doctor stated my husband's HBP was inappropriately treated by VA, and was a factor on his death....more to this document then that, but I think that is all I need..and I enclosed the rating sheet that noted his HBP at a NSC rating.of 10%.

The other is a pending request that VA CUE themselves on one part of their Nehmer award, regarding their CUE award..

My evidence under the CUE scenario is based on multiple pieces of documented evidence ( which I enclosed copies of ,with that CUE claim, that were regarding "established medical evidence" at time of the alleged decision I had CUed in 2003,on a 1998 VA decision, which resulted in Nehmer addressing that CUE and awarding it but the CUE award was still wrong.

Was Dr Bash able to somehow prepare an IMO for the CUE you now have, that fully considered the established evidence? I assume that is what you mean.

BUT would VA consider his IMO NOT to be established medical evidence at time of alleged CUE????...maybe I am not clear here on this and I hope I can find something at BVA to understand this.

Anyone see what I mean?

CUE does not depend on medical rationle, it depends on a clear legal error that did not allow the established medical evidence to come into play (to the veteran's detriment) at time of the decision being CUed.

[Berta]

My point is here ...I just search the BVA web site and this is what came up

0 results — searched 822038

(cue) AND ("imo") AND (independent OR medical OR opinion)

I don't think the VA will accept an IMO on a CUE claim.

That is one reason why we don't get VCAA letters on CUE clsims.

VA does make mistakes however and has sent VCAA letters to Cuers. If they did that and then said you needed an IMO for the CUE,in a VCAA letter ... whoooop ti do...you could hold them to that and make them accept the IMO.

Perhaps Dr Bash was able to bring out the older 'legal' error in his IMO in a way VA would accept it

[Snake Eyes]

The IMO is for HTN and diabetes with complications. He addressed TDIU from a medical atandpoint and a CUE for non -inferred TDIU based on the facts at the time my original claim was decided.

He did all that in one letter.

[Snake Eyes]

Berta,

Basically, what happened is that I met the schedular requirement in the VA's rating of my claim AND I submitted a statement in support of the claim to the effect that I was not gainfully employed.

The working conditions I cited were related to issues that surfaced in my psych C&P exam.

Since I was filing for TDIU anyway, when I pointed the statement out, he considered it to be a CUE -- and addressed that in his IME letter.

Thanks for all you do for vets.