Pursuing 100% Scheduler Over Keeping IU

[MarineLCpl]

I’ve been receiving IU for 10 years now for PTSD/Anxiety/Major Depressive Disorder. It was initially diagnosed as major depressive and anxiety, but that was dropped in favor of PTSD at my last 5-year evaluation. My condition has worsened with time with no signs of getting better. I’ve tried therapy, medication, etc. I’m still getting scheduled for C&P exams, but nothing changes with my benefits. 

What bothers me is the lack of security in the long term. If I understand correctly, I have ZERO protections on IU, no matter how much time has passed, this benefit can be taken at any time. If I understand correctly, at least being scheduler has protection once certain time milestones have been reached. And you can try to work on it without fear of losing benefits, correct?

I have postponed the idea of starting a family because of this lack of security. I don’t even have the courage to pursue a meaningful relationship due to being embarrassed about not working. In a perfect world, I could at least TRY to work without having to worry about losing benefits. I don’t have much faith in being able to hold down a job, and because the VA would likely try to reduce me for even trying, I just don’t. Why? Say I do good at a job for a few years, but eventually get fired for having a mental breakdown. I’d be in the same position I am now, minus the benefits. What then? File again? Just sounds so backwards. 

What are my options at this point?

Going back to my last c&p exam, note they dropped one 70% rating in favor of another 70% rating. I feel like they did this to prevent a scheduler status. I still have depressive/anxiety symptoms out the wazzoo, but they just seemed to lump it all up nice and tidy being labeled ‘ptsd.’ Not sure what to think about that. 

I can’t even contribute to an IRA with VA income. Being able to attempt to work affords me an opportunity to at least earn SOME income that would allow me to plan better for retirement. I just want a little normalcy, or at least the illusion of it so I’m not constantly thinking my life is already over. I’m getting close to the breaking point...Hoping someone can chime in here. Thanks everyone 

 

MarineLCpl

 

Edited May 23, 2019 by MarineLCpl

[Buck52]

MarineLCpl How old are you ?

I   did not have enough work credits in to get SSDI When I was awarded TDIU P&T  And to young to get SSR  I had to wait 15 years to get SSR  When I turn 63   And I was on TDIU P&T  When I filed for SSDI....Plus SS Denied me 3 times    so I  got fed up  and just waited the 15  years to get the SSR.at age 63

I think the SSA  B.S. me until I gave up.  didn't have the funds for an attorney back then.

Edited May 25, 2019 by Buck52

[brokensoldier244th]

There is a sort of end run around Roth limitations for non-taxable income. IF you were to be married, your spouse could afford to contribute considerably more, possibly the max, to IRA, due to your VA covering the expenses. Im certainly not saying 'get married' however, if you find the 'one', and finances are discussed, etc, and all is okay, then this is something to keep in mind. By being able to contribute more than a couple might be able to normally to an IRA you would still have the benefit of a retirement fund account that is separate from your VA disability income. You/she (he?, whatever) could always adjust your finances later if your rating changes, up or down. Its not elegant, its not perfect, but it is legal. Your spouse also has the benefit of opening 2 IRA's one for them, and one for you, being the 'low/non-earner'. This both doubles the amount  of money that can be socked away. Right now (2019) full contributions are 6000 a year, or 12,000 for married couples if the earned income is below 193,000 a year. Once you are over 50 you can kick in an extra 1000 a year each. So, if your VA floats the boat, or most of it, it frees up the majority of the earners income to set up IRA(s) and you can tinker with each IRA for level of aggressiveness, etc. With the joys of compound interest, and potentially not having to tap it all that much in your later years, the amount in there could be quite a sum since its supplemented by your VA monthly, since a working couple would both (theoretically) not be working and only having the retirement fund disbursements, while in your case you'd have those, in addition to what you still have coming in. 

Regular IRA's are more aggressive, but you don't pay taxes until you take the money out, you get a tax deduction now. You could, however, have one aggressive fund and one non-aggressive fund, for each of you, and with good choices, have more than a Roth might produce, or 1 Roth and 1 traditional. Since your tax situation may always be lopsided because of being a single earner couple, it may be less advantageous to take the traditional route, though, since the tax deduction you'll get at the end of each year probably won't be any better than you already get be being only 1 earner. If you have kids this becomes even a larger gap due to increased deductions and lower tax bracketing for having kids, EIC, Child Tax credit, etc. You'll still get that even with a Roth, and not have to pay taxes later on your withdrawals. 

 

https://www.investopedia.com/retirement/making-spousal-ira-contributions/

Edited May 25, 2019 by brokensoldier244th

[MarineLCpl]

 

11 hours ago, Buck52 said:

If your getting IU AT 80%  YOUR NOT SUPPOSED TO BE WORKING AT ALL   THIS IS GIVEN TO VETERANS THAT DON'T MEET THE 100% SCHEDULER BUT THEY CAN'T WORK DUE TO THE DISABILITY RATED AT 70% OR IN YOUR CASE COMBINED DISABILITY'S AT 80%  YOU WOULD BE OK FOR A YEAR OR SO UNTIL THE VA CHECK WITH SSA/IRS...THEN YOU PROBABLE WOULD BE REDUCED.

  YOUR PLAYING WITH FIRE IF YOU DO ANY TYPE WORK THAT PRODUCES REPORTED INCOME.  WITH A COMBINED RATING AT 80% AND GETTING IU  PAID AT THE 100% RATE.

They do have exceptions for this SHELTERED INCOME OR WORK ON A FAMILY FARM...  but only in special circumstance...if you get a VSO and he/she tells you you can work   ask for the Regulations on that  and then decide for yourself.

 

Sorry for the Caps   just now noticed it............

Well then, I suppose I should pursue scheduler status after all. As far as sleep apnea goes, I’m not sure I have it. I do frequently have more trouble breathing when trying to fall asleep. But as far as issues when I’m actually asleep, I have no clue. The only things I can think of to potentially be filed as secondary claims are long term memory loss (have a hard time remembering my youth days before the service) and hearing damage (certain frequencies cause an unpleasant, loud distortion in my right ear). Now I’m not sure about the memory loss, but if I recall correctly, tinnitus is 10% max. That would get me to 90%, but it’s not much help in terms of gaining scheduler. Perhaps I’ll get tested for sleep issues. One thing I’ll note is I am constantly clenching my teeth due to anxiety. A simple thought about something negative causes me to clench my teeth together and bite down aggressively. Again, not sure if that’s even relevant but thought I’d make note. 

 

If I may, why are you so convinced they will reduce if i participate in marginal employment? Why bother stating the whole ‘under the federal poverty limit income is allowed’ if they’re going to reduce or propose to reduce if you do it? Makes zero sense to me. I thought being unemployable meant that you couldn’t hold down a regular job making over the poverty threshold..it would be a losing battle for them to propose a reduction based on my part-time home work...work that I do at my own pace, as my own boss, with little to no repercussion if I fail. Making 5k at home doing whatever over the course of a year is hardly enough to consider someone “employable” in my opinion 

10 hours ago, Buck52 said:

MarineLCpl How old are you ?

I   did not have enough work credits in to get SSDI When I was awarded TDIU P&T  And to young to get SSR  I had to wait 15 years to get SSR  When I turn 63   And I was on TDIU P&T  When I filed for SSDI....Plus SS Denied me 3 times    so I  got fed up  and just waited the 15  years to get the SSR.at age 63

I think the SSA  B.S. me until I gave up.  didn't have the funds for an attorney back then.

I’m only 31 years old. I’m not sure I have enough work credits for SSDI, and I’m far from seeking SSR obviously. 

Edited May 25, 2019 by MarineLCpl

[Buck52]

  I am not saying you can't work and get IU   you can if you meet the criteria to do so.

  Read this from Veteran Attorney Chris Attig.   (V.L.B.)

without breaking the VA unemployability income limits.

#1:  Marginal Employment & TDIU Benefits.

This is the type of income that many veterans are aware that they can receive even after being granted TDIU Benefits.

Simply go to the US Bureau of Census website, and look up the “poverty threshold for one person”.  (Click here to see the historical poverty ratings tables from 1959 – 2015).

You will see that, for 2014, the poverty threshold for one person is  $12,316 per year (if you are under 65), or $11,354 (if you are over 65). In most cases, veterans are advised that these poverty thresholds are  the VA unemployability income limits.

So, this is the first way that you can earn an income – and continue to receive a 100% TDIU rating –  without breaking the VA unemployability income limits: ensure that whatever income you make stays below the poverty thresholds for your family size.

Each year, the VA will ask you to verify your employment (or lack thereof) to determine whether you are eligible to continue to receive TDIU Benefits. They typically require that you use VA Form 21-4140 or 21-4140-1 to do this report.

The VA does cross check 2 databases that I know of:  Social Security databases that record your work/income history, and IRS databases that record your family income on your annual tax returns.  Word to the wise: if you are telling different income stories to different federal agencies, you are playing with fire, and may even be committing fraud.

If you indicate in this form that your income is higher than the poverty threshold, a proposal to reduce your TDIU benefits will be forthcoming.

It’s one of the few times that the VA acts with a sense of purpose – when they want to STOP paying you.

#2: Sheltered Employment & TDIU Benefits

Another way that Veterans can earn an income while receiving TDIU Benefits – and without breaking the VA unemployability income limits – is by participating in what is called “sheltered employment”.

There are many ways that your income can be considered “sheltered”, but 2 that are clearly identified in the regulation itself:

1) Family business

2) Sheltered Workshop (these are supervised workplaces for adults with a physical and/or mental handicap)

Now, just because you are working for a family business doesn’t mean your job is considered “sheltered employment”.  It has to be what the regulation refers to as a “protected environment”.

N.B. – Veterans case law is not  100% clear on what constitutes a “protected environment” or “sheltered employment” or “marginal employment” for TDIU purposes. I strongly encourage that you get legal advice from an accredited VA attorney if you believe that your work is sheltered/marginal/protected so that you do not lose your TDIU benefit because you exceed the VA unemployability income limits.

A protected environment occurs when the employer makes special accommodations to employ and provide an income for a family member or a disabled worker. This happens quite a lot  – a family business, to reduce its tax burden or simply to help another family member, pays a disabled Veteran family member an income that they would not otherwise be able to receive.

How can you tell if there is a protected work environment so that you ensure your income does not get flagged as exceeding the VA unemployability income limits?

What kind of questions would you ask, and what kind of evidence would you need?

If you can get answers to the following kinds of questions – typically in an affidavit by the business owner or the executive in charge of hiring/staffing – you will have a much stronger proof of entitlement to TDIU benefits even while earning an income well above the poverty threshold in a sheltered employment situation.

1) Did they employer provide any special accommodations (especially if they are not required to by the Americans With Disabilities Act) to accommodate the employee with disabilities?  These accommodations are most commonly adjustments to the work schedule, the work environment, or the work duties.

I have not handled a case yet where a major employer, covered by the Americans With Disabilities Act, provides an accommodation to a 100% disabled Veteran as required by law to do. This is an interesting question as to whether or not the employment could be considered sheltered when the company has a legal obligation to enact accommodations.  I am not aware of any VA precedent on this topic – if you do know of a precedential case on this topic, don’t hesitate to let me know!

2) If the employee leaves the company, will the business hire a “similarly situated” person to fill the position (i.e, another worker with a disability)?

There are 3 scenarios here:

Scenario #1:  If the business plans to modify the Veteran’s position after he or she leaves so that there are no longer accommodations to the work duties, environment or schedule, then you can make a pretty good argument that the employment is sheltered.  Why? Because it appears that the position may have been created or modified just for the disabled Veteran.

Scenario #2: If the business plans on continuing the accommodation, then its a pretty good argument that the position itself – and anyone that holds it – is sheltered employment.  (Many employers do this for the tax advantages available to certain types of “sheltered workshops”).

Scenario #3: If the business plans to eliminate the position after the disabled Veteran leaves the job, then it is most likely “sheltered employment”.

None of the above scenarios are absolute: the more evidence you can show that an employer created a job for a 100% disabled Veteran – whether for “feel-good” reasons, tax incentives, or any other reason other than common business reasons, the stronger your case of showing that your position is “sheltered employment” and keeping your additional earnings within the VA unemployability income limits.

3) Is there evidence that another business in the same industry would NOT hire a similarly situated employee, and pay them a similar income, for the same type of work?

What do I mean here?

If your family business pays you $50,000 a year, while allowing you to come in to the job  “only on the days you feel up to it”, look to other businesses in the same  industry to see if they would pay that same salary to an employee that comes and goes at will.

Where do you get evidence of this sort of thing?

Honestly, you would hire an economist to prepare an expert report on the nature of the employment and whether or not it is sheltered, based on a survey of the particular industry.

This type of expert report can get really expensive, so I would not typically do this unless it was really questionable whether the employment was sheltered or not, and there was a lot riding on the outcome.

Frankly, providing evidence that answers Question #3 is probably a bit “over the top” in most Sheltered Employment claims.

Legal Advice in Sheltered Employment situations.

Be very careful with the Sheltered Employment rules.

They are not frequently applied, many in the VA do NOT know about them, and they can lead to serious consequences if applied incorrectly. The VA fiercely protects what they believe to be the VA unemployability income limits to make sure that veterans do not abuse the benefit.

I’m not telling any details here, but I know of a couple veterans who have been charged with criminal fraud for collecting TDIU benefits while exceeding VA unemployability income limits – they received a (sometimes very small) income and doing nominal work for a family member’s business.

These charges usually will not stick – as the US Attorneys that prosecute these crimes have far less understanding of VA regulations than even most VA raters or Board Hearing Officials.  But you’re going to have to pay a criminal defense attorney to make it go away, and the VA ain’t repaying your attorneys fees.

That said, it is ALWAYS BEST  to get legal advice – call a VA Accredited attorney and ask for a consultation –  if you are considering earning income above the poverty threshold and want to know if it is or is not considered “sheltered employment”.

Source: Chris Attig  Veterans Law Blog

 

[Buck52]

If your unsure you may have sleep apnea  request a VA  Sleep Study ...they will be the ones to diagnose you if you have it.?

[vetquest]

Really good advice from Buck52.  I am 100% scheduler and IU and will not try to work even below the poverty threshold because they might then look at this as proof I can work.  It took ten years to get IU and I do not want to lose it over several thousand dollars a year.