marginal employment TDIU

[Lemuel]

I have a question.  Does anyone know of any "case law" on 38 CFR 4.16, the part on "marginal employment?"

I had a long email discussion with my former attorney regarding TDIU.  She was considering coming back on my claim.  But I want my TDIU  claim back to 1987 when I first submitted it.  I worked, part time, in a sheltered environment following giving up on rehab.  I gave a shot at trying to get jobs I thought I might be able to do by working extra time off the clock.  Jobs that required a lower skill level than I have when I'm functioning.  She is now refusing to come back on the claim because she believes (personally apparently, no case law cited) that if you are getting charity money in connection to a job it counts as "a substantially gainful occupation" if the pay is near, at or above poverty level.

My part time employer made a statement in writing to the VA that made me realize I wouldn't have made it as a Hotel Night Auditor which is a low paying low bookkeeping skill job that I had been applying for in addition to part time jobs.  After 3 years I gave up the part time job because of increased charity.  It made me feel like a beggar on behalf of the VA.  My employer's statement said he had twice moved part of my work to another employee.  Also that the most difficult thing for him to deal with was my being unable to function on demand when he needed me at times.  I was employed to work a specific client's, famous actor, books.  Out of charity, the statement said, they agreed to pay me 4 days per week to do a 3 day per week job.

I was unable even keep up the 3 day a week job working an extra 16 to 30 hours over the 32 hours I was on the clock.  And I knew the job was really a 3 day per week job or even less because at times, when I was clicking, I could catch up a great deal of work.  The work didn't change in quantity or complexity.  I just changed in functioning level because of enervations, partial and complex partial seizures that were untreated.

 

[broncovet]

First, lets talk about the horse, the cart later.  The horse is if you are awarded TDIU.  Have you been awarded TDIU?  If so, then you can consider appealing the effective date, and I am in the process of doing JUST THAT.   

So, putting the horse first, do you meet the criteria for TDIu, that is, a doctor says you are unable to maintain SGE due to SC difficulties?  Likely, you may need a voc rehab counselor to say something similar, also, especially you need to get rid of the sentence, "He can do sedentary work".    There are 2 types of TDIU, 38 CFR 4.16a  and 4.16b.   Did you meet the percentage requirments for TDIU in 1987 for 4.16a?  If not, then you must go the 4.16b route where you also have to show that your disability "presents an unusual picture" so that 4.16a does not apply.  The example they use is if you had a lower disabiliy percentage, but you had such frequent hospitalizations or doctor trips, that your employer let you go.  

Ok, so if you have been awarded TDIU, now we can move on to the "cart", that is, the effective date.  If you have not been awarded TDIU, then an effective date is meaningless.  However, effective dates always begin with the "general rule" of the later of the date of claim or the "facts found".   It sounds like you applied for TDIU in 1987, according to your post, then you move to the "facts found".  

Assuming you HAVE been awarded TDIU, and you are appealing the effective date, and THAT attorney does not want to represent you on that issue, then you may have to change attorneys.  They like to specialize and get real good at one or 2 things.  Not all want to represent effective dates, they are complex.  You may need to go to the NOVA site and find an attorney who does effective dates.  They list their areas of expertise.  

You will (likely) need to do so quickly.  If you have gotten a recent BVA decision, you need to file a NOA within 120 days.  You dont get a year to appeal board decisions.  

[Lemuel]

Cowboy (WY) vet to Bronco Vet.  In fact my May 11, 2017 BVA decision granted me TDIU back to July 2009 when I became 70% under 416 (a).  There is a Remand for the 1987 Claim found in the file by the Judge that had never been sent up to the Director Compensation Service or listed as an issue in any SOC since and there were a number.  The Judge ordered the claim be developed by the AOJ and sent to the Director, Compensation Service for a decision.  Also to re-evaluate the compensation level granted by the post 4 month hospitalization 1992 RO.

So, I'm concerned with the "Case Law" precedence decisions. 

I have a NOA to the CAVC for denied earlier date for tinnitus.  One of my earlier posts.  There is plenty of precedence denying "Johnny come lately" tinnitus claims.  But my very first complaint of a hearing problem in the Navy, 9 years before my finale discharge, was because of tinnitus.  It was always a problem in Audiograms but only reported most of the times but not always when there was a box on the report form for the audiologist to check and report.  Tons of Audiograms but often referred to civilian contractors who used an abbreviated Beltone form for a report.  The RO in the 1989 Decision granted 10% for Tinnitus as of the decision date of 1989, apparently a clerical error.  I had never specifically claimed tinnitus as is reported by the BVA Judge in the remand and "reconsider" tinnitus compensation level.

I have another question.  I had a terrific Judge.  I've learned a lot just reading her decision.  Would like to post it redacted for informational purposes on this site but can't find a route to do that.  I can put it up and let someone who has that authority do it?  It is 36 pages long.

 

Edited October 11, 2017 by Lemuel
clarity

[Lemuel]

Bronco Vet,

This is part of a response I'm sending to the Evidence Center in response to dozens of letters from them regarding development of the Remand to give you an idea of the complexity I'm dealing with because of my long standing incompetent effort.

Department of Veteran’s Affairs

Claims Intake Center

P.O. Box 4444

Janesville, WI 53547-5365

 

FAX:  844 531 7818

 

Refer to: 

1)   442/MH; File no. _____________; Lemuel Bray; letter dated September 21, 2017

2)   BVA Decision May 11, 2017 Docket no. 15-34 597

3)   CAVC NOA Docket no. 17-2990

4)   DVA letter dated, August 11, 2017; 331/KF; “IBID”

5)   325/JT July 11, 2017 letter; File Number ; Lemuel Bray; DOB May 16, 1941; SSN ______________.

6)   362/SP-OPS/ENN dated April 18, 2018 “IBID”

7)   Pages 2192 and 2193 of the CD sent to me on February 9, 2017 by the VA Records Management Center in St. Louis, Mo.; VA Form 21-4138 by Al Marsella, CPA Dated May 7, 1990.

8)    Page 2521 of the CD “IBID”; The Rating Decision of 6/27/1985

9)    Pages 587 thru 590 of the CD “IBID”; Dental C & P Exam dated 6/4/2017

10)  Additional CD pages of Progress Notes referenced in the text.

 

This is long and will be updated from time to time.  The original date will be kept with an “Updated …” date inserted just under the original so that it can replace the original.  It is to be used for verification only until completed.  The last pages include my Motion for a Stay to the CAVC until the record can be addressed for completeness by me.  I’ve included notifications of missing documents, at least in what has been provided to me, with references to those documents that are in the record.

 

My organic brain syndrome interferes with my clarity.  Since taking Keppra for partial and complex partial seizures on August 15, 2015, and by October 2015, I have been functioning much better most of the time but not all the time.  I’ve probably missed several items in the time it took me to get mental health therapy for a PTSD relapse triggered by the request for “incident specifics” which are already in the record.  For personal security reasons, it is best that I don’t deal with these incidents out of mental health therapy except in very general terms and references.  It is the way I cope.  Additionally, I cope by being an activist for veterans with organic brain syndromes as I am trying to do now. 

 

I’m trying to go through unfiled letters and catch up with responses.  There will probably be some duplication but I can’t help my confusion.  I’m doing the best I can to make this as complete as possible and will use it to form Court filings and briefs in my Pro Se filings to the U S District Court, the CAVC and the CAFC.

 

THE DETAIL OF THE HOSPITALIZATION CLAIM is below under 8045-9304.  I’m also trying to answer other requests in this letter to bring them all together in one place.

 

ALL THE ISSUES:

1)   An 1151 Claim under 38 CFR 3.154 & 3.361 “Benefits under 38 U.S.C. 1151(a) for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program.” Specifically, Navy and VA failure to diagnose and treat seizures led to over 30 years of diminished employability and unemployability.

2)   CUE or “Failure of Duty to Assist” 1974 hearing rating (look at the 1975 hearing rating schedule compared to Audiograms to date then); AOJ VARO Hawaii

3)    CUE or “Failure of Duty to Assist” 1974 tinnitus rating evidence of record that tinnitus was the initiating complaint while in the Navy in 1965; AOJ VARO Hawaii

4)    CUE or “Failure of Duty to Assist” 1974 epilepsy rating per 1969 hospitalization record and subsequent Enlisted Personnel Evaluations; AOJ VARO Hawaii

5)    CUE or “Failure of Duty to Assist” 1974 organic brain syndrome rating for claimed “residuals” of Facial injury and evidence of record the RO should have reviewed; AOJ VARO Hawaii

6)   PTSD continuing aggravation—the incident of having the feeling of leaving behind other veterans with organic brain syndromes.  Repeated failed efforts despite NIH studies which when considered show the VA minimizes TBI and p. falciparum malaria residuals as well as residuals of outgoing as well as incoming blast effect.

7)   CUE of 6/27/1985 Rating Decision denying PTSD, page 2521 of the CD provided by the VA Records Management Center in St. Louis, MO. on February 9, 2017.

8)    CUE or “Failure of Duty to Assist” 1992 epilepsy rating on confirmation of seizures 9/16/1990 reported to the CA DMV 1/27/1991.  Missing Neurology clinic records.  Missing spinal clinic records.  Both indicated in other documents; AOJ VARO Los Angeles

9)    CUE or “Failure of Duty to Assist” 1992 decision increased 8045-9304 hospitalization rating; AOJ VARO Los Angeles

10)        CUE or “Failure of Duty to Assist” 1992 decision increased 8045-9304 rating on release from hospitalization; AOJ VARO Los Angeles

11)        CUE or “Failure of Duty to Assist” 1992 decision secondary service connection for spinal condition; AOJ VARO Los Angeles

12)       CUE or “Failure of Duty to Assist” 1992 decision, referral to the Director, Compensation Service TDIU claim; AOJ VARO Los Angeles

13)       Rating Decision dated 1-22-92 on pages 419 thru 421still open in appeal because of denial of access to evidence.

14)       BVA Decision, Docket No. 89-39 868, dated OCT 17, 1990 is still open and under consideration.

15)       BVA 8^th item of remand; referral to the Director, Compensation Service on page 36 of the May 11, 2017 Decision;

16)       VA AND MILITARY DECEPTIONS

17)       SF-95 TORT CLAIMS of April 20, 2016 with reconsideration request of February 9, 2017

 

Consider this letter a formal claim for the “CUE” and for “Failure in Duty to Assist” for addressing the above stated issues that have not already been raised.

 

The BVA Judge reported no prior claim of "duty to assist" but I just found one in the file that was sent to me just before the Decision on my request for missing items.  That request hadn't been filled by the BVA hearing and likely the Judge had been given an abbreviated file.

 

Edited November 19, 2017 by Lemuel
Redact personal info

[broncovet]

Ok.  First, dont send stuff to go to CAVC to the Evidence Intake Center, use the CAVC address.  It may never get to the CAVC as the VA may not send it there.  

2.  Ok, so you have a "pending claim" because it was remanded and the remand was never completed.  TAKE full advantage of this, 38 CFR 3.156 B (reopen due to new and material evidence of a pending claim) is in your favor.  It means any evidence you submit now, applies to the beginning of the appeal period.  

3.  If you are at the CAVC, consider a lawyer.   Reasons:  

The most important one is that, at the cavc level, EAJA fees are regurarly awarded to successful claimants AND remands.  Translation:  This means you will pay little or no attorney fees!

Also, rememeber at the CAVC level, the BOD, and the claimant friendly stuff goes away.  You will have a team of VA attorneys fighting you at the cavc.  

Finally, we have a lot in common:  Im 100%, and a cowboy from your neighboring state, Colorado.  And USN.  

[Lemuel]

I've gotten dozens of letters from lawyers but none want to take the case until after the remand is done because the Judge was so good.

I've faxed to the CAVC number for the clerk given in the local rules for the CAVC.

I think the BVA Judge denied the "tinnitus" re-dating claim so that I would have something to issue an NOA to the CAVC on and put pressure on VARO with the BVA and the CAVC waiting for results.  When I called the BVA to find out if I had to file an NOA on the tinnitus to keep it open the clerk said yes.  Since the Judge made a referral instead of a remand on tinnitus, I think she left it open both ways.

So, I filed a motion to stay after the Record has been provided and until I've been able to identify all the missing items and until the Remand and current claims have been decided. It seems I must claim each instance of failure in duty to assist and CUE.  The CUE I understand is very difficult.  I also have a 1151 claim filed both in the VA claims system and under reconsideration at the GC's office.  I'm using my effort to present evidence on both sides as I develop my U S District Court for the District of Wyoming filing.  Need to finish it by the first of the year relying on my treatment of seizures as the SOL date.  As it is I must toll the date.  I haven't been able to get an attorney to take the SF-95 Claim for failure to treat seizures for 40 years.  Mostly because so many neurologists didn't treat.  An inattentive blindness problem plus the VA's cutting-edge theory that permeated the VA from the late 1980s until an NIH study in 2010 that reversed the Yale Medical School study on behalf of the VA in order to get access to telemetry units of a surgical study on status epileptus and Parkinson's tremors.

I just realized today, as a former HM1 with service in RVN, that my recent PTSD reaction is mostly because of the feeling of having left men behind who were not diagnosed with organic brain syndromes.  I began an activist effort in 1987 after I had been diagnosed and compensated at 30% for "traumatic brain disease" for other veterans diagnosed as adjustment disorders or non-permanent PTSD with obvious (to me) organic brain syndromes resulting from TBI like me, p. falciparum malaria, exposure to concussive effects of income coming, outgoing, and close proximity to bombing missions.  Finally, in 2008 a reporter picked up on it and wrote an article that got the TBI rating table of today which is woefully inadequate.

Except for a hospitalization bout in 2014, I hadn't had a problem with PTSD since stopping my demonstrations in DC in 2002.

 

[Lemuel]

As of last month, NIH has confirmed every premise of organic brain syndromes that I presented on the DC Mall from 1995 to 2002.  The last 3 years seems to have been a response to a letter I wrote after the 2008 TBI determination saying I was right about the TBI situation in my filing in 1988 and I was sure I was right about the other causes of organic brain syndromes diagnosed as "adjustment disorders."  p. falciparum malaria, exposure to concussive effects of incoming and outgoing blasts (especially if they caused nose bleeds) and proximity to bombing missions for the same reasons.