UPDATE!!!!!!TDIU denied due to FERS disability application???

[Kelly Severance]

Hello Everyone.  My husband received his SOC from the VARO on his remand.  I have posted only the last 3 pages.  The first few pages were just standard explanation of TDIU and factors that are considered for that disability, as well as a list of all the evidence we submitted.  The last 3 pages explain the decision.  I am confused because I know that veterans on this board have been approved for TDIU while in the process of applying for FERS.  Any advice or comments are appreciated.  Should we send in a statement from HR saying that while still listed as "employed", he has not worked since January of 2018?

Edited June 13, 2020 by Kelly Severance

[jonnyohio]

Unfortunately your employer still has you on the books, which means technically they disagree and feel you can still work (the VA is trying to use a legal loophole here).  What you should obtain is a competent medical opinion stating that you are unable to work and why and how long you have been unable to work.  Then appeal the decision and submit that to BVA along with arguments.  Your employers opinion on your ability to work is meaningless, because their opinion does not constitute competent medical advice.  Simply because your employer has failed to take action to either remove you or approve your disability claim, does not mean you are employable.

[Buck52]

if your hubby was still working or shown he has been working this is a killer to be denied IU   you can't be working and apply for IU...he needs to send in medical evidence that shows when he had to stop working  and also a Qualified Dr needs to actually state your hubby can't work due to his service connected disability. 

they mention he met the IU criteria but was employed at that time.(killer denial)  SEND IN NOD  ASAP WITH RECORDS MEDICAL DOC'S FROM A QUALIFIED Dr  to state he can't work or do any type or symmetry work due to his S.C. Disability.

[Kelly Severance]

Thank you for responding Johnny and Buck.  We did send in a letter from his doctor stating that he is unemployable due to his SC disabilities (referenced in the next to last paragraph).  Also, my husband has not worked since January 2018.  He applied for FERS disability (and it is currently in the appeals stage, as it has been denied Twice).  So the reason he is still listed as employed is because he applied for FERS disability.   So they are saying that he is gainfully employed because he is still listed "in the books"......

[Berta]

I have a local vet friend who was told to apply for SSDI, as part of  a FERS situation. His SSDI award came fairly fast as he could no longer work for the VA, or anywhere else.He told me the SSDI was solely for an inservice back injury that the job had exacerbated.

VA subsequently rated his inservice back injury at 10%. (1997) He has yet to see a vet rep to get a proper rating.

(I know what some of you are wondering- but I was reluctant to help him with TDIU, because he kept forgetting to show me his SSDI award. I think it is primarily for NSC issues. I set him up with a local vet rep months ago, but he forgot to go)

My point ( sorry for griping about this local vet- but I see that circumstance from time to time around here)

FERS requires an SSDI award as far as I know and maybe some FERS vets here will correct me if I am wrong.

Has your husband applied for SSDI? If so did they deny? If denied, did he obtain a SSDI lawyer?

Buck is correct- a qualified doctor needs to prepare an IMO/IME with a full medical rationale as to why he cannot work, and how long he has been unable to work solely due to his  SCs.

The full IMO/IME criteria is in our IMO forum here.It needs to followed carefully.

I posted it  in our IMO forum  many times and developed it because I used Dr. Bash' 2 IMOs he did or me, and since he is a former VA doctor, he knew everything a strong  IMO/IME needed to contain.

If this is what a doctor already prepared for him, and VA has not considered it yet- make sure it followed that criteria and make sure they get it ASAP.

It seems to me that you also need to send it  directly to the Disability Reconsideration Board- I assume that is part of HR at the VA, who had the appeal since May 2019.ASAP.

 

 

 

 

 

 

 

 

[Berta]

I mentioned the local vet above because you said

"I am confused because I know that veterans on this board have been approved for TDIU while in the process of applying for FERS.  Any advice or comments are appreciated"

Because they probably received SSDI already for the SC(c) that caused them to be unable to maintain the GOV job, and VA had that info, And/or had been turned down by VA Voc Rehab due to their SCs.

JonnyOhio is correct:

 "Your employers opinion on your ability to work is meaningless, because their opinion does not constitute competent medical advice.  Simply because your employer has failed to take action to either remove you or approve your disability claim, does not mean you are employable."

But you have to prove unemployability- and that will take a strong IMO/IME, tht accesses all available medical records.

Does he have private records of treatment from when VA said he was AWOL?From 2018?

Those record are critical to this situation and VA might have asked for them by now.

 

 

 

[broncovet]

Im in agreement with the above advice.  I will add:  

Check VA's critieria for TDIU.  It says, (my paraphrase)  "unable to maintain Substantial Gainful Employment" due to SC conditons.  Now, SGE is also defined as earning the "poverty level" or better which they publish.  Its "about" $13,000 per year as follows: 

https://militarybenefits.info/veterans-pension-rate-table/

     Provided that you earned LESS than the MAPA from the table (see link) during the most recent 12 months, then you dont have SGE, using VA's defination.   USE VA definations against them, they will do that to you.  Look them up, dont use the summary or paraphrase I provided.  

     You should appeal and eventually win.  VA's defination of TDIU is "not" whether or not you are "on the employment rolls" of VA.  The VA has criteria, they have to rate "on the criteria" and not based on whether or not you have purple hair, or other non criteria.    The court will likely adhere "to the published critieria" and "not" hold the Veteran responsible for non critieria, such as whether or not you are on the books.  

     The VA tries that, tho.  They denied me hearing loss because "it was too long since military service".  However, in my appeal, I stated that "time since military service" was not a critieria for hearing loss.  I won, because the VA has to rate "on the critieria".   Otherwise, VA could use our race, our sex, our political ideology, or any thing else they wanted to deny.  This is why "reasons and bases" is required, as the court can review the R and B. 

     NOTE:  You may need an IMO to win this.  Your doctor is not a vocational expert, and you need the same to opine that you cant be retrained in some type of sedentary work.