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


Kelly Severance
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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?fullsizeoutput_513.thumb.jpeg.611809ce55309a2149c8b31c63561202.jpeg

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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.

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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.

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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"......

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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.

 

 

 

 

 

 

 

 

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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.

 

 

 

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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.  

 

      

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WoW!  It was so refreshing to log in today and see such positive and helpful guidance!  Thank you everyone.  

Berta, My husband did have to apply for SSDI in compliance with FERS retirement regulations.  He was denied at all 3 levels.  We just received that as well.  We did retain an attorney for the hearing.  I know it sounds awful that he has been denied at every level.  But he is truly unable to work.  He has other disabilities that we plan to file for (Gulf war connected) but we were advised to not file until his TDIU remand is settled, so we have not.  

I will definitely search the IMO forum tonight and begin that process. We thought that our PCP's  letter would help, but apparently not enough and money has been very tight since he stopped working, so we did not do the IMO from the "get go".   We have all private and VA medical records to date.

In addition, the VES exams they sent him to found that he should be rated at 50% in stead of 30% for PTSD.  The statement said they took those exams into consideration, but they did not increase his PTSD......

Broncovet, thank you for your response as well.  I thought as you did, that SGE was based on salary, which has been ZERO since January 2018.  So we will write a statement using their terminology against them.  The final paragraph in his decision letter basically states that he meets the criteria and that medical records indicate his migraines have the potential to make him unemployable, but the denial was all about the fact that HR at his VA employer said he is still a full time employee..........

We are at the appeal level of FERS and have no lawyer (we cannot afford one). We have received correspondence from our judge with all of the things we have to do asap.  We are definitely not qualified to do all that is required, so we thought about just dropping that and resigning the position.  

We have 30 days to respond with more evidence, or it will be sent back to the BVA for a final decision.

 

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I got an IMO from Patrick Clifford, a Voc rehab specialist, upon the advice of my lawyer, Chris Attig.  Chris "won" a remand at the CAVC with instructions for the Board to decide if hearing loss alone was sufficeient to render me unemployable.  Mr. Clifford wrote a great IMO for me, he charged me two payments of 300 each (both on a credit card) for the IMO, and I won a six figure award based on his IMO.  

You see your doctor can opine you are unable to work due to sc conditions, and you need that.  But, when they want to be a pain (most of the time), they can still deny alleging that you could "potentially" find other work.  You have to show you cant do any job, not just your old job.  That is where the voc rehab comes in.  They often retrain you, but, they can opine if you are not a good candidate to retrain.  For example, if you are 60 years old blew out your knees and never touched a computer before, its not likely you can become a computer programmer at age 60 and still get a job as a programmer.  Its probably not feasable.  

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26 minutes ago, broncovet said:

I got an IMO from Patrick Clifford, a Voc rehab specialist, upon the advice of my lawyer, Chris Attig.  Chris "won" a remand at the CAVC with instructions for the Board to decide if hearing loss alone was sufficeient to render me unemployable.  Mr. Clifford wrote a great IMO for me, he charged me two payments of 300 each (both on a credit card) for the IMO, and I won a six figure award based on his IMO.  

You see your doctor can opine you are unable to work due to sc conditions, and you need that.  But, when they want to be a pain (most of the time), they can still deny alleging that you could "potentially" find other work.  You have to show you cant do any job, not just your old job.  That is where the voc rehab comes in.  They often retrain you, but, they can opine if you are not a good candidate to retrain.  For example, if you are 60 years old blew out your knees and never touched a computer before, its not likely you can become a computer programmer at age 60 and still get a job as a programmer.  Its probably not feasable.  

Wow.  I thought an IMO was much more expensive.  I think we can swing that.  Is Patrick Clifford someone that we could get in touch with?  Does he have a website?  Thank you Broncovet!  I'm beginning to have some hope again!

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On your FERS application..........Did your employer opine as to whether they could accommodate your husbands disability?  

OPM is a stickler on this subject, and that is why I ask.  Resigning should never be considered, you will leave to much on the table, insurance being one of the biggest , and that can not be replaced no matter what you get moving forward.

Anything you think that is SC related should be filed on right now, not only will it strengthen your VA case, it will strengthen your SSDI and FERS case. 

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3 hours ago, JR Reihs said:

On your FERS application..........Did your employer opine as to whether they could accommodate your husbands disability?  

OPM is a stickler on this subject, and that is why I ask.  Resigning should never be considered, you will leave to much on the table, insurance being one of the biggest , and that can not be replaced no matter what you get moving forward.

Anything you think that is SC related should be filed on right now, not only will it strengthen your VA case, it will strengthen your SSDI and FERS case. 

thank you for responding JR Reihs!  On the FERS application, HR officer did state that they could not accomodate or reassign my husband because his disabilities were so severe.  OPM responded to that by saying that the HR officer was not his supervisor and therefore could not opine as to whether or not he could be reassigned!!!!!!!!!  My mouth dropped open when I read it!  As far as FERS, we are now at the appeal level and have been assigned a judge.  In my rebuttal, that was one of the things that I addressed!  My comment was something like:  The HR officer opined that he could not be accomodated.  That is his/her job.  The HR officer gets their data from the supervisor, hence is qualified to make that determination"

I am working right now on submitting a claim on one of his Gulf war presumptives, so thanks for that encouragement!

I have also contacted a vocational expert (thanks Broncovet) and am sending him all paperwork for his expert opinion.

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Should you still need Patrick Clifford's address it is www.cliffordvocationalservices.com.

I personally would submit all claims you can ASAP. I don't see how that can hurt anything.

If you don't have a copy of his C-file I would try to get it so you can see what they have. Are you familiar with the M21-1 Adjudication Manual? I did a search for m21-1 tdiu and it comes up with the full section on TDIU. You should read through it and see if anything will help you. In my case the VA keeps ignoring the fact that the SSA has granted me SSDI solely for service connected disabilities. The VA also keeps bringing up that I quit my job. Reading through this you will see it has no bearing.

Even though I am on SSDI and VR&E has rejected me because of my inability to work the VA keeps saying that evidence of record does not prevent you from all employment. That is a bit ridiculous now isn't it. How are you supposed to fight that? I have asked them to provide me the evidence of record that says I can still work. 

Keep fighting. Keep educating yourself. Don't give up. They keep messing up my case, but I keep reading and learning more each day to keep fighting them with.

 

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Hello Everyone.  I wanted to provide an update to this post.  When I last posted, we had received an SSOC that the VA had completed the remand instructions for TDIU and that they were continuing the denial because my husband was in LWOP status while he awaited an appeal for medical retirement as a VA nurse.    So.......I got some great advice from this forum as to the best way to proceed.  Thank you all!  A shout out to @broncovet for taking the time to walk me through all this.  Here is what we did for NEW evidence ....

1.  Hired a Vocational Expert, Patrick Clifford.  We sent him all our medical documentation.  He wrote a summary of my husband's disabilities and opined that he is unable to obtain or sustain SGE.  

2.  We printed his SS statement from online showing $0 for the last 2 years and sent that in.  

The RO still did not grant and sent it back to the BVA.  We got the decision packet today from the BVA GRANTING TDIU!!!!!!!!!!  Thank the Lord!  God is Good!

Not only did the judge GRANT TDIU, He set the effective date!  Back to Jan, 2017. We felt this was remarkable because he did not apply until May 2017, and his last date of employment was Jan 2018....so we were stunned at the ED!

This site, unlike many others, has provided encouragement for us!  As well as ideas for moving forward!  Thank you so much!  

Now......we wait for the RO to implement.  Our last grant to implementation was 13 months......so I know we are in for a wait!

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This is Wonderful News!!!!!!!!!!!!!!!!!!!!!!!!!!!!

The favorable EED might have been due to the SSDI award.....

They ( the RO) gave my husband a very favorable retro date as well-that was about a year before he applied for a higher PTSD rating -as the RO based it on the last day he worked per his SSDI PTSD award.

He was dead by then for almost  3 years. They had to send me the retro.

VA told me ,my Congresman and two Senators that the SSA refused to release his records.

It was a bold faced lie. I fixed them on that with a very long phone call to the SSA in Baltimore.

The SSA had relied solely on his VA medical records for the SSDI award.

 

 

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Congratulations on your win!  You are "at least" the second "W" I know of who used Cliffordvocationaservices.  He was recommeneded by my lawyer, and I passed that on.  

When you get your retro, I suggest you remember hadit with a donation if you can.  Tbird has asked for donations.  This site is free, but its not free to run or maintain it.  Im sure she pays a web hosting fee each month.  

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Thanks @Berta!  In the judge's remarks, he stated that the EED was based on the date that his sick leave showed significant increase!  We don't have SSDI yet.  We applied a couple of years ago and lost at the appeal level.  However, we will be re-applying soon!  He did however win his FERS disability!  At the appeal level and AFTER we hired an attorney!  Imagine that!  We found that out a couple of weeks ago!

 

Thank you @broncovet.  We will be making a donation soon!

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