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.

 

[Lemuel]

Still no attorney.  Doing it myself.  How does this look for a CAVC motion to correct the Record Before the Agency.  Have to file it by next Monday:

 

IN THE UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

 

Lemuel clayton bray Appellant, vs. DAVID J. SHULKIN, MD Secretary of Veterans Affairs                                            Appellee,

Docket 17-2990 Motion to correct the rba

 

This motion is brought under Rule 10 (b). 

There are many missing items from the RBA relevant to my claim and appeal.  While most of the items are not relevant to the NOA current issue, they are relevant to the BVA Remand and bode for causing a return to the CAVC if not obtained.  Obtaining a carefully copied new complete copy of the Medical Division OPTRs and IPTRs from the VA Records Management Center should provide most of the missing evidentiary documents and in a reasonably organized fashion not including much of the superfluous and disorganized documents in the RBA.  Other items that have gone missing from the file are items that can be obtained from the Communications Division of the VA Central Office which the Appellee clearly has access to.

Missing, specifically, but not limited to:

1.      Missing 5 months of OPTRs for Seizure Clinic visits at the West Los Angeles Medical Center that started 2 weeks from 9/17/90, reference RBA pages 3290 (page1) beginning & 3289 (page 2).

2.      Missing 6 or more months of OPTRs for Spine Clinic or Back Clinic reference RBA 2996 dated 9/12/91included in IPTRs.  Appellant has a copy of the 10/28/91 visit which is now missing from the IPTRs but dates the visits from April 1, 1991 in the copies provided by Cheyenne VARO.

3.      Neuropsychological Assessment, undated, but dated by Progress Note on RBA page 3343 as 8/16/91 in IPTRs.  Appellant has a copy of this from the hard copy of the file sent to Appellant by Cheyenne VARO.

4.      1-5-90 X-ray report of X-ray ordered on RBA page 3256.

5.      Multiple additional hard copy radiographic reports that will be in the Medical Division OPTRs and INPTRs.

6.      Denver VARO internal memos and VAOIG letters responding to the Appellant’s alleged failure in getting a DRO hearing in Cheyenne, before the closure of the 1/22/1992, in addition to The Denver VARO letter dated JUL 20, 1998, RBA pages 2626 thru 2628, claim appeal on June 19, 1995.  I have an interoffice memo provided to me by the Communications Division in the VA Central Office last year.  It is available from the same resource to the Appellee’s attorney for inclusion in the RBA as are probably many of the other missing items.  Use the Denver VARO JUL 20, 1998 letter to the VAOIG as a reference point to get the memos.

7.      Denver VARO letter of June 19, 1995 Closing the appeal of the 1/22/1992 referenced on RBA pages 2626 & 2710.

8.      The missing letters from me stating periods of unavailability for a hearing because of traveling for obligations to family and friends including the transfer to DC when the hearing hadn’t been provided while I was in Wyoming before my move to DC.  The letters are detailed on that interoffice memo provided to me by the Communications Division in the Central Office last year.

The RBA is 4529 pages long and is not in any way correlated to the 3151-page CD that I received dated 2/15/2017 which I have done considerable work on.  I may have to referenced pages from that CD as 02/15/2017 CD that I have not yet found in the RBA.  I can forward to the attorney for the Appellee via Adobe Creative Cloud or by Fax broken up for large files, as the attorney requests by phone or email, items that I have that escaped becoming paper mashie from water damage from my original copies, or from the hard copies sent to me by Cheyenne VARO in 2015 or were on the 1420-page CD provided to Attorney Ellermann for the BVA hearing. 

The items that I do not have, have been previously requested by FOIA on numerous occasions and responded to with items from the C&P file in a non-denial denial response.  “This is all of the records we have,” quoting the letter dated, February 9, 2017, (RBA page 1056) from The Records Management Center in response to my FOIA of August 11, 2016, (RBA 1399 thru 1405).  Quoting from my letter:

“I’m requesting all C&P Documentation that was not included on the CD provided to my attorney, Vanessa Ellermann via correspondence dated March 28, 2016.

There is a big gap from the time I was in Japan until 2009.  In that time I had a claim and an appeal that is either incomplete or denied that there is no documentation of on the CD.

Also, I’m attaching a previous request for Medical Division copies of Medical files to replace documents that have gone missing from my C&P file.”

The Record Management Center is under the Appellee’s jurisdiction and is not responding with the missing items from the hard copy of the pre-computerized Medical Division OPTRs and IPTRs which fall under the jurisdiction of the Director of the Medical Division which was the former position of the Secretary and has not provided a complete record of the correspondence via the U S Consulate from 1998 thru 2012 regarding attempts to get a C&P exam for pending claims and appeals.

The Appellee’s attorney may stipulate that efforts to obtain a qualified English Speaking Neuropsychological Assessment were impossible and that therefore all claims and appeals between 1998 and the present.

The RBA seems to be sufficient except for the missing response to the VAOIG by Denver VARO acknowledging the failure to give the requested hearing in the appeal of the 1/22/1992 Decision.  I have a copy of the memo (which is not in the RBA) that seems to have been used to prepare the letter I saw in my file on my last review of it in Washington, DC, sent to me by the Communications Section in the Central Office detailing the dates of my letters, dates I would be unavailable, dates of the AOs letters in the period of unavailability and dates of hearings set in the period of unavailability on those same letters.

I request the Appellee’s attorney fulfill all previously requested FOIA letters, from January 1, 1990 through the present, as required by 38 CFR 3.159, that were responded to with non-denial denials from the Medical Division or stipulate to the Appellant’s belief of what is on those documents, and radiographic films, which had incomplete reports not rejected by AOs, as required by 38 CFR 3.159 and 4.2, for failure of completeness and failure to provide etiology opinion statements, and EEG tracings which would show, if given to a second opinion professional requesting a complete report including an etiology statement form the medical history included in the Appellant’s medical file. 

By 1990 these items were produced digitally except for the hard copy OPTRs & IPTRs and should be archived somewhere for research access.  The films, that were shown to me, would have been retired after 5 years but replaceable from the digital data.  The hard copy EEG tracings are probably similarly disposed of on the Telemetry Units, but the digital video and tracings should be reproducible from archives. 

The several “abnormal” EEGs and 9/16/1990 IPTR should be sufficient to provide the Appellee’s attorney grounds for stipulations as to the similarity of what could or would be produced given the West LA VARMC was using the telemetry units for a “cutting edge” theory research that led to over a decade of wrong information regarding temporal lobe seizures being diagnosed by VA physicians as pseudo and psychogenic seizures and being passed as “clinically approved,” affecting all Americans with this particular problem.

The Appellee’s attorney can, keeping in mind my TBI residuals, rely upon my residual 126 verbal IQ and 13 plus years as a Naval Hospital Corpsman independent duty qualified and having been shown the Radiographic films by the attending physicians, being present when the EEG technician left my side to get a physician for a stat reading of an EEG by the attending physician, or being present when the ultra sound technician left my side to obtain a stat viewing by the attending physician and having noted them in writing over several years in requesting the copies of the films on the refusal of the medical division to do complete reports including etiology assessments as required by 38 CFR 3.159 and 4.2.

I will raise no objection to an Appellee’s request for an extension to 30 days of the time to respond to this request to correct the RBA.

At the same time, I request the opportunity to make further requests to correct this very lengthy and complex RBA  in the interest of getting it right the first time and not having to carry this action out further.

 

 

Lemuel C Bray In Pro Se 2833 Main Street Torrington, WY 82240-1929 lembray@gmail.com Ph     307 316 8568 FAX 307 316 0936   I previously filed a motion to delay until the remand is done so all things could be considered while requesting the provision of the RBA should not be delayed.  Good thing.  Lots of missing items.

[broncovet]

If you are "in remand", then you can submit new and material evidence under 38 cfr 3.156 B to reopen the claim, for any issues still under remand.  

You can not appeal a claim in remand, because its not "finally adjuticated".  Its like appealing a claim where no decision has been made, they always tell you to wait until its decided.  

You have to wait until the remand is carried out.  

Yes, I know its frustrating when VA wont comply with the judges order in remand.  Its a Stegal violation.  

If they wont comply with the remand, then you can try a writ of mandamus to compel compliance with remand.  Caution, tho.  You need to give the VARO "time" to accopmplish a remand that is supposed to be given expiditious treatement.  Of course, the courts dont define that.  And the VARO/board will say..."Gee that backlog is rough isnt it...to bad its taken 3 years for a remand, but we are working on thousands of other Veterans claims, just like you".  The court always buys that excuse.  

If you plan on filing a writ, make sure you document contacting the VARO about non compliance with remand order.  Several times.  Otherwise your writ will be denied straight out.  

Your writ will almost certainly be denied regardless, but the judge can order the VARO to "answer" the writ.  That is what you need.  If the VARO "answers" the writ, then they will usually say something just like the sentence quoted about the backlog and they are working on it.  But, this will force their hand.  

[Lemuel]

Thanks.  Actually I was aware of the delaying tactics because they have been ongoing.  Trying to show they are doing their job by asking for evidence already in the file.

And as noted in the request to correct the record the items not in it go mostly to the remand except for the missing audiograms.

I have an SF-95 on file and will submit a complaint to the U S District Court for the Wyoming District next week.  As noted in the request to correct the record, I haven't been able to get all of the evidence needed because of non-denial denials.  I'm hoping the civil courts will cause the VA to be more responsive or give me a summary judgement.

The six months mandated for reconsideration ended on October 28.  I believe I have an additional 6 months after that but am not going to use it to file the complaint.  I've done all of the administrative avenues required.  I believe that will force the remand command to send the file to the Director of Compensation Services for review to be implemented and responded to in a timely manner.

One of the items I'm using to toll the statute of limitations is those deceptive responses and the deceptive claims in the Rating Decisions of simply stating the file was read completely but only citing the negative items and giving no indication that the outweighing both in volume and degree, positive items were considered by quoting them or at least listing them in the items considered.

The SF-95 is based upon my seizures becoming worse because I was treated with Tegretol which the Physicians Desk Reference on drugs states that Tegretol may make atonic seizures (the diagnosis given for treatment), partial seizures and complex partial seizures worse.  Items of anterior temporal lobe lesions indicated both by Neuropsychological Assessment tests and EEGs on me and which I experience.

Fortunately, I am now being treated with a drug which I am responding to and am able to function well enough to proceed without an attorney.

[Lemuel]

How do I correct the profile label?  I was an E-6 not an E-3.

[Navy04]

This is not your actual rank on file, it is for the Hadit Forum site. The longer you are on and as you post more stuff, your rank goes up on the Profile. Hence mine due to being on here a long time, and writing a lot, Lol.

[Lemuel]

On ‎10‎/‎11‎/‎2017 at 5:46 PM, broncovet said:

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.  

Yes, I am trying to go back from 2009 to 1987, my first claim for TDIU.  My last "substantial employment" was in 1985.  I had a part time job given to me in charity from the business manager of a well known Hollywood actor from 1987 to 1990 when they were going to hire another employee to do my work and still give me a pay check.  I felt it was the responsibility of the VA not the actor to fund my life so I gave up the job.  The additional employee would have gotten less work if I stayed and neither of us would have had enough to survive in LA without additional public assistance.