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Tdiu -- What Is Considered Work?

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Snake Eyes

Question

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).

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OH. I got it!.

Have you formally filed the CUE using his statement and adding the regulations they broke and how that error had a manifested outcome to you?

Dr Bash is very good at not only finding potential CUEs but even additional disabilies ,which he did in one of my IMOs. I haven't filed that claim yet.( 1151 claim so no time limit)

And my pending CUE might well cover that anyhow.

We have templates for CUE here...they should be short and sweet

I like to use M21-1MR to bolster CUE issues:

M21-1MR not only contains citaions a claimant can use the also cite VA case law

"Reasonably raised claims for IU may arise in a Veteran’s original claim or in a claim for an increased rating. The Department of Veterans Affairs (VA) must consider a claim for IU if

· the Veteran’s SC rating meets the minimum schedular criteria found in 38 CFR 4.16(a), and

· there is evidence of current SC unemployability in the Veteran’s claims folder or under VA control.

Reference: For more information on reasonably raised claims for IU, see

Norris v. West, 12 Vet.App. 413 (1999)."

M21-1MR Part IV Subpart ii Chapter Two Section F under 25.

Sorry ....this is on my PC , with no hyperlink but it is here somewhere at hadit,I have posted this excerpt here many times, and also can be googled for the link.

Proving a Lack of Consideration for SMC, is how I won my SMC CUE.

Also it was how I won my IHD CUE claim ( which I kept forgetting ,that I had 3 CUEs on one disability and another CUE filed on the IHD,under 1151, prior to Nehmer.

I also have forgotten and this post reminded me. VA awarded for AO IHD direct SC but not under 1151. I can still file under that....

(Malpractice sure has a long snowball affect........)

Everything I had ( particularly a 1998 rating sheet, warrant posthumous SMC.

One piece of my evidence was a copy of the SMC mandate ,as well as the regs in 38 CFR and M21-1MR, and I also copied a brief page of the VBM from NVLSP.

that fully supported my CUE claim.

I don't think VA will react to the CUE Dr. Bash raised unless you formally claim it.

It definitely sounds like a very valid CUE.

Edited by Berta
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I was thinking the same thing. On the FDC form I note that a CUE is identified in the IME and also provided a separate lay statement explaining that my financial statement that was not considered was in the VAs possession before a DBQ that they did consider.

I'm thinking all the bases are covered... Good luck on your claims as well.

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