Unemployed Timeframe

[sbrewer]

Is there a time frame that you must be unemployed for x amount of time before you can file for IU for depression?

sbrewer

[sbrewer]

How can you still be employed and file for IU, or better yet win IU if you're still working?

sbrewer

[cloudcroft]

sbrewer,

[if you are NOT arguing marginal employment as part of your TDIU claims case, you can stop reading here]

Well, some people here tell vets (still!!) that you can't be working and file for TDIU, or even GET it if you are working.

That's 100% incorrect. I did.

So when I disagreed, some people here then said that it's so rare, for all practical purposes it really doesn't happen...it's not a viable option...so they continue to tell vets they can't file or get TDIU if they are working. So I gave up correcting them (about a year or more ago) as it got very tiring as well as annoying. And it took a possibility away from OTHER vets who may have been able to apply it to THEIR TDIU claims case since this option seemed to disappear off the radar screen here, because it's "so rare" it wasn't considered a real option by some members here. So they ignored it every time a TDIU question came up and didn't even MENTION it to other vets as even a possibility, regardless of its so-called rarity.

Okay. So I've left it alone since.

I'm back now just to give some tips now and then here if I think they'll help someone. And since TDIU is a frequent topic here, and I am TDIU, I might know something about it.

So I advise YOU to research everything you can re: TDIU, including appeals cases heard at the BVA...look for the key words "TDIU" and "marginal employment" for starters. My case will be one of them. In fact, the issue of me working did not even come up (!!) as anything negative at all, either at the VARO or the BVA. So why do some vets say it can't be done or, the VA won't even consider it?

I don't know.

I'm not going to go through my whole case here -- it took 4 years of struggle and there's some personal info I don't want here all over the Internet -- but I WILL say that people who tell you you can't file FOR or GET a TDIU decision if you are working are 100% wrong. Rare is it MIGHT be (but I'm not at all sure it IS that rare; I've seen no evidence to prove it is rare), it is possible and the "rules" allows for it. Of course, you DO have to prove it's MARGINAL employment, money-wise and in re: to your personal situation...your level of education, are you able to work in jobs that fit your education level or are your always in jobs WAY BELOW your education level, problems at work because of your disability, etc., all this is necessary, too.

I also believe it's how well you present your case. As you have heard here many times, YOU are your best advocate, not someone else.

I depended upon myself, not the useless VSO. And although I am a "mental case," I was coherent enough to pursue my own case all the way to and "arguing" it (yes, I know, the BVA is a non-adversarial/non-courtroom environment, but you still have something you're trying to PROVE) before the BVA, in a video session with a BVA member as well as using several VA 21-4138 forms (Statement in Support of Claim) to make additional points or file rebuttals. A vet who IS somewhat incoherent or poor in writing/arguing skills -- "naturally" that way or due to medications -- would have more trouble, probably too much trouble to argue his/her own claim...in that case, he/she NEEDS someone's help. It seems that if you come across as uneducated/brain-dead/ignorant, you are treated that way. If you are not, "they" will have more trouble jerking you around.

So do the research (I did) and become conversant re: TDIU. Maybe even some CVA (Court of Veterans Appeals) cases would concern this (I looked mostly at the BVA cases since that's where I was headed...if I had failed at the BVA level, I would have searched CVA cases...but this might be a good idea anyway, to have them ready, before you get to the BVA...if you have trouble with the them then you could cite relevant CVA cases).

Whatever you do, you need to do the research.

I'm just saying that if you met the scheduler requirements for TDIU, are having social/performance trouble at your job/showing up for work due to your SC disability, and are in a marginal employment job, you SURE CAN file for and GET TDIU -- you do not have to quit first. It's not a slam-dunk, but the law/rules allows for it if you can prove your case...but this is true of any case, not just TDIU, isn't it.

If a "mental-case" like me can do it, I would think others can, too.

Good luck,

-- John D.

P.S. TWO more things:

1. If vets here do not AT LEAST search earlier HadIt posts for info on their own claims issues -- especially if he/she is too lazy to do it -- it's THEIR fault (and no sympathy from me) for not knowing this stuff, so be sure to do it. If the older "archive" posts haven't been lost, there is lots of info in them that can help. People post stuff here to HELP others...don't disrespect their efforts by not researching older posts to see what anyone wrote about your particular issue...who wants to post the same answers over and over again? I know I don't.

2. If you are rated at 50% or less, the VA does not even CONSIDER TDIU. So, when you apply for it and get denied, it may very well be that YOUR CASE, the REST of it, is still "good" if you will -- or has promise -- but since you are not meeting the scheduler requirements, it is denied. What I am saying is that often, it's not that your disability/situation or whatever has no merit, it's just that the VA sees you're only at 50% and denies TDIU right up front. They DO NOT make this CLEAR, so many vets probably think the rest of their case has no merit. Don't believe that; the VA may only be telling you you don't qualify on the scheduler part, consequently, if you don't, the VA DOESN'T EVEN HAVE TO LOOK AT what else you have. So, if you can prove the rest of what's needed, get a higher disability rating then APPLY for TDIU again...THEN the VA must look a the rest of your case.

-- JD

Edited January 20, 2007 by cloudcroft

[Vike17]

Cloudcroft,

You are correct, the regulations do allow under certain circumstances a TDIU rating when someone is working. But like you said they are rare actually very rare. Same as being rated IU without meeting the schedule criteria for it. Do they happen, yes, but its a rare thing indeed. You are in a very, very small minority!

§4.18 Unemployability.

A veteran may be considered as unemployable upon termination of employment which was provided on account of disability, or in which special consideration was given on account of the same, when it is satisfactorily shown that he or she is unable to secure further employment. With amputations, sequelae of fractures and other residuals of traumatism shown to be of static character, a showing of continuous unemployability from date of incurrence, or the date the condition reached the stabilized level, is a general requirement in order to establish the fact that present unemployability is the result of the disability. However, consideration is to be given to the circumstances of employment in individual claims, and, if the employment was only occasional, intermittent, tryout or unsuccessful, or eventually terminated on account of the disability, present unemployability may be attributed to the static disability. Where unemployability for pension previously has been established on the basis of combined service-connected and nonservice-connected disabilities and the service-connected disability or disabilities have increased in severity, §4.16 is for consideration.

Also see M21-1MR, Part IV, Subpart II, Chapter 2, section F.

Vike 17

[cloudcroft]

Vike 17,

I have read in a couple of vet forums a few posts by some "experts," that someone getting TDIU when not meeting the disability percentages (i.e., schedular qualifications) has NEVER happened to their knowledge, even though, as you say, there is an allowance for it in the law. Apparently the Director never has approved any such claim. I don't know.

But re: someone getting TDIU while working at a marginal job, that HAS happened...at least once!

So the latter is much more likely than the former.

But kidding aside, I'm sure there are any number of vets out there who won "marginally employed" claims similar to mine...we just don't know about them, partly because the overwhelming majority of vets don't post here OR at the VBN. They finally win their case and disappear. I suspect that MOST vets probably don't even know about these two sites...or the other "war-specific" vet sites.

Regardless, despite the alleged rarity of wins in these type of TDIU cases, vets should be made aware of ALL the options open to them.

rickb54,

Yes, it is possible to work after getting TDIU...but that's one "test" I prefer not to take! And I don't now where any data would be to show how many vets are doing this. But if the vet has a mental disability, working is unlikely...unless, perhaps, in a family business or some other protected environment. Still, if you have a high mental disability rating, working SHOULD be pretty much out of the question. Not so for the physical disability vets.

I could have gotten 100% schedular, but a 10% award for tinnitus thwarted that. True, the 100% would not have helped me re: working because my disability is mental, not physical, but it would help for getting my retired pay...if I were not a Chapter 61 retiree that is.

What a lot of stuff you have to be aware of to work your way through the process...it's almost like a chess game...except it sure isn't a recreational activity...

-- John D.

Edited January 21, 2007 by cloudcroft

[Vike17]

Cloudcroft,

In all years I've been doing this, I have only seen, I think two, extraschedular ratings for IU. One was for headaches which were rated at 50% (the maximum under the rating schedule) and the other was for a really, really bad skin problem. However, I did not work those claims personally. The bottom line is if you do not meet the schedular requirments of IU, it is very, very difficult to obtain authroization from the Director of Compensation and Pension in Washington, D.C. Veterans, however, should file the VA Form 21-8940 fi there are unable to work because of their disabilities regardless of the percentage, because the IU form acts as a claim for increase also. If the veteran does not meet the schedular requirements of IU and sends the form in any way, the VA will first see if the disabilities warrant in increase and if so, would they bring the disabilities up to mee the schedular requirments of IU. If the disabilities are then increased to meet the schedular requirements, then the issue of IU is address. If not the RVSR must believe in his or her judgment that the veteran is unemployable because of their sevice-connected disbilities AND then he/she will forward it to the Director of Compensation and Pension for extra schedular approval. If the rVSR does not beleive in his or her judgment that one is unamployable due to their servcie-connected disabilities, the RVSR will simply deny IU on the basis of not meeting the schedular requirement of §4.16. The RVSR must be your advocate so to speak when sending it to Washington, D.C. for approval. You truely musthave your ducks in a row for this to happen. It's a very, very rare thing.

As far as working a marginla job while being on IU, I have seen this only once, and this was a veteran working in a "protected enviroment" or a "tightly held Corporation," in other words a faimily business. With these situations it also hinges largely on the RVSR judgment of whether the veteran is capable of maintaining a substantial gainful occupation, not whether they currentl have one or not. Cases like these also fall back on the medical examniner quite a bit too. Even if the doctor says that it is in his opion that the veteran veteran can not work, but there is any evidence to the contrary, the RVSR has the authority to deny IU. These cases are also very rare. Wheher working in a protected enviroment is less rare than being awarded IU witout meeting the schedular rrequirements, I don't know. It doesn't make much difference, they are both rare ocurrances.

Rickb54 is correct. The subject of IU is under very heavy debate with the commission, and I suspect they are going to recommend that VA tighten the screws a bit when awarding IU and so forth. Not because of just simply to save money as some would argue, they're going to recommend this because of some of the discepencies form veterans working a full career and shorly before retiring they claim being able to not work because of their disability, just to pad their retirment. This may sound crazy to many, but this is happeneing more than one wants to believe.

Vike 17

[cloudcroft]

rickb54,

So what do those vets UNDER 65 do, who have TDIU now?

Save up their money, whatever MIGHT be left over each month (if any), for "retirement" because they might be cut off when they hit 65?

You know, in this present climate of political/social uncertainty and change, I think A WHOLE LOT of vets worry about keeping their awards down the road, for the long haul. And it DOES seem to be MAINLY about the VA saving money/cutting costs.

But that just may the paranoia kicking in again.

Or maybe not.

-- John D.

Edited January 21, 2007 by cloudcroft