Keep fighting even after TDIU???

[LanceJoseph]

Good Day Everyone, 

My situation is this, in Jan 2018 the BVA made a decision and granted me TDIU, and SMC-S, along with that there was an increase of two service connected claims to 10% Left and Right knee patellofemoral syndrome and a denial for increase of a service connected lower back pain claim.  I was told by many not to rock the boat but the decision the BVA made 12/1/17 were based on a four year old C&P exam in 2013 and my range of motion both flexion and extension have greatly worsened in my knees and my back pain has become almost a daily battle of getting my body to agree to what I would like to get done.  My ultimate goal is to return to work, as I am a young guy that is currently working with Voc Rehab and my other practitioners to get me to that point. My question is should I keep fighting or just shut up? 

[Richard1954]

Now I will add my 2 cents to the question...

As many have said, you have the right to file any claim you want to file.  I was told by so many people in the past, that once I was awarded TDIU I should never file another claim, because the VA will reevaluate every one of your conditions each time your file,  this is just not true and don't let anyone scare you into this belief.   At the time I was awarded TDIU.  I had  four separate ratings, two were 10% ratings, one was a 30% rating, and one a 60% rating.    I did not stop there, and why would I when so many conditions where highlighted in my active duty medical records that I had not claimed yet,  due to ignorance of the system when I medically retired. 

Since my initial rating  I have been awarded a TDIU rating,  I have been bumped to a single 100% rating,  ( apart and separate from my TDIU rating ) and have received 14 other ratings from 0% to 50%. I have received adapted Housing ( which today is a $70,000 grant, I have received the Auto Grant which today is about $20,000. I was awarded 1 K award, and I have A&A at the L  1/2 step.  My dependants have received the benefit of not one but two separate Chapter 35 awards with different start dates ( 1999  for TDIU and 2007 for 100%).   I never even knew it was legal to get more than one chapter 35 award.  Also, as we age, our conditions get worse with time. A back strain becomes degenerative disc disease and will bump a 10% rating up.  Torn meniscus of the knee eventually results in arthritis of the knee and a seperate rating. And lets not forget about the damage a VA surgeon can do to someone when they have surgery for a service connected condition.  There are so many valid reason  to continue your quest for any condition that you feel should be service connected. 

My situation  could be the highlighted as the poster child for continuing to file claims.  And to this day I continue my quest to be receive increased ratings and new ratings for some medical issues.   I have had people tell me why would you pursue a claim that only awards 10% its not going to result in any more compensation...but when I decide to file a claim I am not looking to get a 10% or 40% rating,  I am looking to get service connected which is the hardest thing to do. After getting service connection then I pursue the rating I think I am entitled to, if I haven't already received it.  I may have 9 10% ratings, and alone they may not amount to much, but when your start combing the 60% , 50% 40% and even 30% ratings you may achieve another  100% rating,  and the nine 10% ratings will help you get to that second 100% rating.  Also,  don't  forget the special monthly compensations that you may end up with, such as Housebound or Aid and attendance and the different levels of  Aid and attendance as well as multiple K awards.  Finally,   you could end up  being eligible for a free life insurance policy because your rated TDIU or 100%,  or disabled  veterans  mortgage insurance,  which you can only get if you are awarded the adapted housing grant.  And for those that are really hurting they now have the caregivers program where a family member ( or anyone you designate) as your care giver receives a monthly check based on the amount of help you need, and this program has just recently been approved for all disabled veterans.  Another benefit for those that have a TBI, is a higher level of Aid and attendance that only those with a TBI (  Depending on the severity) may be eligible for.  And remember, you never know when or if the VA will  decide to take back that TDIU or other rating.  So additional ratings are  one way to insulate yourself against losing your compensation. 

If you just sit back after your TDIU award, you will never know how much compensation you may lose, but if you continue to file and achieve new ratings you  may just  be surprised how fast the compensation dollars add up. Together with the compensation  & ancillary benefits you may  live very comfortable.  Finally,  wouldn't it be nice to leave your spouse financially secure  when you leave this world with the mortgage paid off,  and a monthly check from DIC or survivor benefits ,  especially if she/he stood by you and cared for your during the hard times,  for me this was my greatest motivation.   

You served,  and your quality of life has been diminished because of that service, you owe it to your self and family  to continue to file claims if you feel they are valid. 

[LanceJoseph]

As it currently stands I don't feel as though I have any new evidence that I'm wanting to claim an increase for. I filled out a supplemental claim form for an increase and to request new C&P exams on the basis that my disabilities have gotten worse. My knees and back aren't mentioned much because I don't currently see an ortho specialist. Should I wait and get appointments and request them to fill out DBQ's to support my claim to just go ahead with the claim and request a new C&P exam?

[GBArmy]

If the "only thing" you consider to add only as an after thought are your back and knees, IMO you probably will be better off and filing after you get this one straightened out. Not knowing what you have for records/evidence, you would be better served taking your time to build a case on those. Get dbq's or IMO's if don't have s-c in your str's and build a strong case. You have time, check out BVA decisions that match up to your situations; it never hurts to have one or two that you can submit with your dbq's. Again, there is more than one way of doing things, but that is what I would recommend at this stage. IMO.

[kanewnut]

2 hours ago, LanceJoseph said:

Should I wait and get appointments and request them to fill out DBQ's to support my claim to just go ahead with the claim and request a new C&P exam?

Since VA likes to deny claims and then you have to go through the long process of appealing them, doesn't it make sense to go ahead and file. While you are waiting you can start building up the case. Perhaps you will get a positive C&P and you won't have to build up your case or miss out on disability payments. JMO

[GeekySquid]

5 hours ago, LanceJoseph said:

As it currently stands I don't feel as though I have any new evidence that I'm wanting to claim an increase for.

you and only you can make that decision but as others have said you might as well get the process started.

[Buck52]

Can a Veteran Earn an Income while Receiving VA TDIU Benefits?

To answer this question, we need only look to the law.

For those of you that don’t know what TDIU is, I encourage you to read this post to get a basic understanding of the 2 types of TDIU Benefits.

To those of you trying to win your VA TDIU Claim, I encourage you to consider whether a copy of the VA TDIU Field Manual, or the VA TDIU eBook Package – will help you understand and improve your VA TDIU Claims.

38 C.F.R. §4.16(a) – the section of the Code of Federal Regulations that states the requirements for eligibility for TDIU Benefits, states the following:

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.

Now, as I’ve discussed before on the Veterans Law Blog, the law does not clearly define what substantially gainful occupation is. But the law DOES define what Substantially Gainful employment IS NOT.

Read the rest of 38 C.F.R. §4.16(a):

38 C.F.R. §4.16(a) – Marginal employment shall NOT be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. (emphasis is mine).

So there you have it – the 2 ways that Veteran can earn an income while receiving VA TDIU benefits: when the employment is “marginal” and when the employment is “sheltered”.

We’ll look at them in more detail, below.

You might ask “Why” a Veteran is allowed to earn an income in these 2 scenarios while receiving TDIU Benefits.

Truth be told, I have no clue why Congress wrote the laws this way when they wrote them – someday I’ll dig into the legislative history to understand it.

But since Congress allowed it, there is NOTHING wrong with Veterans getting Marginal or Sheltered Employment income while receiving TDIU Benefits.

#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).  

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 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:

Family business

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”.

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?

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

If you can get answers to these 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”.

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 (or don’t understand them when they do know about them), and the Sheltered Employment Rules can lead to serious consequences if applied incorrectly.

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 getting an 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”.