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]

If you can not get an attorney to take that issue, try another.  Since your already at 100 percent, there are really only 2 issues relevant to you that would result in additional compensation:

1.  An earlier effective date for your award of 100%

2.  Special Monthly Compensation.  

[Lemuel]

I've tried a dozen.  Best chance is the consortium referenced on the CAVC site.  They are helping but not taking the case.  I expect if or when I get close to actually having to finish at the CAVC they'll jump in.  But presently, I'm on my own except for advice from where ever I can get it, including here.

[broncovet]

In reference to "CUE" on "failure in Duty to assist", unfortunately that has already been decided, and the answer is it isn't CUE for VA to fail in its duty to assist. (DTA)   I have read this, tho I can not recall where, and the reason is likely the "outcome determinative" part of CUE.  

You see, one of the criteria for CUE is that the error is outcome determinative.  That is, except for the error, you would have been awarded additional benefits.  Someone has decided that a failure on the part of VA in its DTA is not Cue, because it isnt outcome determinative.  In other words if the VA forgot to send me some notices, that does not mean that it would have changed the outcome of the decision.  

CUE is not for the purpose of fixing the DTA, you need to do that with an appeal, if you are in the appeal period, then the VA will ususally simply send you the applicable notices and its fixed.  There is no real "teeth" in the DTA, its mostly window dressing and the courts wont enforce the DTA.  

Like yourself, I have been frustrated not always able to find an attorney.  It helps if you try to see it from your side.  If they take your case, they have to invest MONEy in you.  Mostly, what an attorney has to sell is his time, and "billable hours".  So he spends all this time and does not get paid for it, he looses money.  Even worse, right now, there are more (many more) Vets who need attorneys than there are attorney's available.  So they "cherry pick" the most favorable cases..that are most likely to generate money for their firm...and turn down the rest.  Its not fair, its just the way it is.  So, to get an attorney to repreesent you, you have to do it well.  Here is how I do this:

1.  Wait until you have received a BVA decision.  This is the absolute best time, with a "fresh" BVA decision within 120 days.  Here is why:  Most BVA decisions have errors.  THE BVA judges just do not have the expertise of the CAVC.  So, the attorney can file an appeal and, about 60 percent of the time, get at least a remand by merely pointing out some errors to CAVC.  A biggie is "reasons and bases" if the r and b are missing or inadequate, that is almost free money for the attorney, because EAJA will pay the fees, and cavc will almost always have to remand it.  

As far as hiring an attorney for CUE, I have not had luck with that either.  The attorney needs to specialize in CUE, so if they dont say that on the NOVA directory website, then dont ask em.  NOVA directory: https://vetadvocates.org/welcome/find-an-attorney/

2.  Use the Nova directory, and expand your search for an attorney beyond your state.  It does not matter where the attorney is with the CAVC.  

 

[Lemuel]

Yes, Bronco, I'm aware "duty to assist" is not a CUE.  But in every CUE incident there is a failure in "duty to assist."  So by claiming both if your CUE doesn't make muster you can still usually find a failure in duty to assist.

Thanks for pointing out that I need to make clear I'm claiming both by substituting an "and" for the or.  And they clearly have to be fleshed out separately.

For example.  CUE for hearing is failure to apply the rating schedule to the audiograms and audiology report in 1974. 

Cue for tinnitus is failure to in the review the file to find the tinnitus reports especially the initial EENT consult with the initiating complaint of tinnitus that led to the discovery of the high frequency hearing loss.  For me, claiming hearing loss or a hearing deficit they were inseparable. I just couldn't hear well because of both, more so because of the tinnitus in actual listening is what I perceived.  I could hear the tinnitus interference and not be aware that I had a high frequency hearing loss in addition.

Failure in duty to assist on the tinnitus was the RO's failure, having stated he reviewed the Navy Health record, in sending the report by the audiologist back and asking whether the failure to note tinnitus was an omission or because the tinnitus was in "remission."

I think, in this case, the record as a whole, as is required, will, or at least should, be taken into account and the CUE for tinnitus granted because of the added weight of the failure of the RO to verify.

The Judge I drew from the BVA was exceptional.  And the brief by my attorney was very good, just didn't go for all the issues I wanted (that I had claimed but were not stated in the SOC).  The judge took the tinnitus issue on my testimony and included in her "referral" (didn't know there was a difference in a "referral" and remand until I looked it up) a claim on my behalf or increased compensation for tinnitus asserting her authority to do so and citing the code.

Bronco, I have a substantial amount of cash and credit available to invest in getting some of the issues done right.  I can invest without depending on recovery of costs and attorney's fees.  And I have to do it for my sanity.  I need an attorney who will go to the CAFC with reopening Bray v Shinseki after the NIH study reports of the last 3 years that show I was right on in my assertion the TBI organic brain syndrome compensation was not where it should be and that other organic brain syndromes rooted in service were being entirely ignored.

We have between 43 and  58 years of RVN veterans who have suffered diminished employment, homelessness, etc. from organic brain syndromes with earned income records that can be compared to veterans of the same years with equivalent induction scores. 

There is also a problem with amputees.  A mental category III or IV veteran is much more disabled by an amputation as far as substantially gainful employment that a mental category I or II.  Likewise a mental category I suffers a greater loss from a mild or moderate organic brain syndrome that a mental category III.  The mental category III has all ready adjusted to being in the mid range mentally.  Much more difficult for the mental category I who is much more likely to develop psychological issues.

As for waiting until the NOA to the CAVC for an attorney, I've done that.  The attorney's who reviewed the decision have agreed, it is errorless.  Have to wait until the remand is done and then see what happens.

None of the solicitations I received from attorney's are admitted to the Bar at the CAFC except the pro bono consortium referenced by the CAVC.  I think there is an attorney with the consortium looking at the potential class action at the CAFC.  Waiting for a response on that.  The door is only open a limited amount of time because of SOL for filing with the new revisions of 38 CFR Chapter 4.

I will now look up the NOVA website and pursue that angle.  Thanks

 

Edited October 12, 2017 by Lemuel
wrong word

[broncovet]

Did you tell the attornies you asked to represent you that you are willing to pay them a retainer (money) up front to represent you??  That is a game changer.  When they decline to represent you, they almost always assume you are broke and wanting the attorney to represent you on a contingency bases, where the attorney only gets paid if you win.  

 

Virtually "EVERY" attorney I spoke with assumed I wanted him to take the risk of a successful claim, by not paying the attorney UNLESS you win.  It sounds like, if I read your post right, it isnt all about winning retro for you, you want that for your sanity and to help other Vets by establishing more fair case law.  

Frankly, they are going to "assume" you are broke, and probably wont bother to ask..so, my advice is to try again, and let them know what you told me.  

When you contact them, explain you are not looking for a "contingency base" fee, that you are interested in paying an retainer and money to represent you.  Let them know from the get go.  

     While you did not say this, I "smell" that VA has hurt you, and you have a bone to pick with them.  Believe me, I know.  I lost my home and my family while waiting on VA to process my claim.  It took them 3 years to deliver any kind of real benefits, while my bills built up and I lost my home.  Of course, its hard to keep your spouse happy when the repo man comes knocking.  I really cant see I blame you to go after them.  

     However, I would also advise you to not persue your claim out of revenge, as tempting as that might be.  Mostly, you wont ever get the revenge you seek, because the people who did this to you are likely long gone, and if they are not gone, the courts "simply dont" go after irresponsible or corrupt VA employees, in as much as I think they should do just that.  In my case, I know that lazy VA employees shredded all of my claims except hearing loss, so they had an "easy" claim which sped up their workload so they could make quota.  I do not make that claim lightly.  In October, 2008, the VAOIG found 5 VARO's who inappropriately had Veterans claims "in the shredder bin", and my VARO was one of the 5.  

     I have "fixed" most of this except for the period from 2002-2004, when I have gotten no benefits except a "zero" percent rating for hearing loss.  Im still going after Va for those last 2 years of benefits, and Im in the process of hiring an attorney now for that.  

     But, IM convinced none of the people responsible will ever be held accountable.

    And, I have gotten significant retro, and there is something going on that I like, too.  I get to look forward to getting those last 2 years of retro.   However, for me, its not all about the money anymore either.  

[Lemuel]

As a matter of fact, I just began that process, offering a retainer,  with attorneys on the list from the VA GC just before reading your post.  I mentioned it to some before but didn't get anywhere with it.

And yesterday I realized that my PTSD relapse was from the present incident of reading an NIH report of one of the things that I claimed for other veterans was causing organic brain syndromes in a Pro Se District Court filing in 1988 when you could only pay an attorney $25.00 maximum for a VA claim in any court. 

Part of the reason is the Army placed hospital summaries in the health records that were only of the rehabilitation unit after the acute phase.  They had these men in open air while still contagious after the acute phase with parasite counts.  No wonder resistant strains developed to the meds being used. 

The only way the cerebral malaria vets could find out how serious their condition was in the records was to get the in patient records.

So there are a lot of reasons to be angry at the VA.  Especially exam reports that are incomplete or diminishing.  I haven't had all 2+ reflexes since 1969 but most neuro exams report all 2+.  Some are 3+ from the brain injury and some are absent from the back injury.

I think for my next C&P, ordered in the remand, I'm going to take a body camera recorder and tell the physician before he can say anything that it is on because of the poor history taking in my record.  There are only 2 accurate histories by the same physician.  And one mostly accurate by another.  Out of 40 years of exams and physician visits.  And that makes me angry because if a physician cant take an accurate history they have all ready gotten an opinion from the last inaccurate history and other sources and are writing a history to meet their assessment not the history you are giving them. 

For the most part, I don't think it is deliberate.  I think it is "inattentive blindness" caused by being told what they are supposed to find, that most of us are malingerers.  Or by previous wrong assessments.