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TDIU wannabee recent BVA decision


Berta

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It amazes me to see the few and far between veterans who try to cheat the system:

 

"ORDER

The severance of total disability rating based on individual unemployability (TDIU) from August 15, 2008 was proper; restoration of entitlement to TDIU is not warranted.

The severance of special monthly compensation (SMC), from November 26, 2008 was proper; restoration of entitlement to SMC is not warranted.

The severance of dependent's education benefits (DEA), from August 15, 2008 was proper; restoration of entitlement to DEA is not warranted.:

In part:

 "In further correspondence, the Veteran requested that his hearing be moved to the end of January 2017 or early February 2017, as he was on trial "in the same matter that is pending in your Division."  See Veteran statement, received by VA December 3, 2016.  

Indeed, the Veteran was indicted in September 2016, in United States District Court for benefits fraud and related charged stemming from unemployment applications he allegedly submitted to the Department of Veterans Affairs and the Social Security Administration, in 2008 and 2013, respectively.  See Defendants' Motion for Order Directing Release of Plaintiff's Disability Benefits Records, filed in the United Stated District Court, November 2016; received by VA November 4, 2016.  

VA rescheduled the hearing to January 31, 2017.  See VA correspondence, November 29, 2016.  VA called the Veteran on the day of the hearing, and he stated that he will not attend the hearing due to a "scheduling conflict."  See report of general information, January 31, 2017.            

A February 2017 rating decision discontinued the entitlement to TDIU, effective August 15, 2008.  See rating decision, February 2, 2017.  "

an:

"In August 2020, the Veteran filed a Motion to Reconsider/Clear and Unmistakable Error Due Process Violation/Request for Expedited Ruling.  See Veteran statement, received by VA August 27, 2020.  The Board acknowledged the Veteran's Motion in an October 2020 letter.  See VA letter, October 7, 2020.    

In February 2021, the Board vacated its May 2020 decision.  See Board vacatur, February 17, 2021.  The vacatur was issued because the Veteran requested a copy of his file in October 2016.  See Veteran statement, received by VA October 8, 2016; October 12, 2016.  There was no documentation in the claims file that the AOJ fulfilled this request by sending the Veteran a copy of the requested documentation.  As such, the FOIA request was still outstanding when the Board issued its decision in May 2020.  The issuance of the Board's May 2020 decision constituted an error requiring vacatur.  38 C.F.R. § 20.904.  Accordingly, the May 5, 2020 Board decision was vacated in its entirety.

In February 2021, the Motion for Reconsideration was ruled to be moot, and was dismissed, as the Board has vacated its May 14, 2020 decision.  See VA letter, February 23, 2021.  

The Veteran's FOIA request was fulfilled in July 2021. "

And more:

"Regarding VA fraud, the Report related that the VA Office of Inspector General (OIG) Criminal Investigations Division began an investigation in May 2014 after receiving information that the Veteran was fraudulently receiving TDIU benefits. The investigation determined that the Veteran was gainfully employed while simultaneously receiving TDIU benefits. See Presentence Investigation Report, received by VA December 20, 2017." (

This investodation might have began because of the SSA fraud, as SSA can share info with VA and Vice versa.It is probably at the VA OIG site.

And ( the decision included a creative litany of unusual statements the veteran made as to his work history,(including a spouse buddy letter.)

"In sum, despite the Veteran's contentions to the contrary, the evidence of record reflects that he was gainfully employed during the relevant period on appeal. He was not only gainfully employed, but also did not work in a protected environment such as a family business or sheltered workshop the Veteran owned and operated, and continued to own and operate, a large honeybee farm, and worked in several companies which he left for other opportunities. Notwithstanding this, the Veteran has been found guilty in federal court of providing fraudulent statements to SSA regarding his employment status. The Board finds that the record, outlined above, provides clear and convincing evidence that, at the time of the discontinuance of a TDIU, the Veteran was actually gainfully employed, and that his employment was not marginal. Therefore, the criteria for restoration of a TDIU from August 15, 2008 are not met and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, supra.

The veteran lost his TDIU, the DEA status for his children if he had any, and also SMC.

https://www.va.gov/vetapp21/Files8/21049161.txt

Where do these people come from?

Actually a bonafide wannabee taught me a lot, many decades ago- as I read his 17 page BVA decision, a denial of course. ( @1995)

I could not wait for the BVA to come on line then, as the BVA decision is what really helped me understand what the BVA needed that he Could not suppy- Evidence of a PTSD stressor. It seemed to me, that BVA took extraordinary steps to try to verify his stressors. I tried to as well.

He somehow had convinced his VA shrink that he had PTSD from Vietnam. That meant he was stuck with, in his claim, the horrific things he said had caused his PTSD in Vietnam ,to the shrink, and she even helped him get into the 21 day PTSD program in Buffalo NY. Some of the vets called me up ( my husband was in the program with them=(all Combat Vietnam)) teling me they had a wannabee in their midst. They were right but I never knew him until he contacted me after my huband died, a few weeks after he came home from the 21 day inhouse program.

I met 2 other wannabees in NY-one was head of a VVA Chapter ( never served in Vietnam per his claims) and the other was head of another vet org chapter in Rochester. When the members learned he had never served in combat or in Vietnam, they still maintained him as their Prsident because he had actually done a lot for Vietnam veterans.

We had a very disgruntled wife here long ago and she wanted me to report her husband to the VA,because she said he was working a full time job and receiving TDIU. Of course I ignored her request. None of us need to get involved in stuff like that. 
 

 

Edited by Berta
added more.
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3 hours ago, Berta said:

It amazes me to see the few and far between veterans who try to cheat the system:

 

"ORDER

The severance of total disability rating based on individual unemployability (TDIU) from August 15, 2008 was proper; restoration of entitlement to TDIU is not warranted.

The severance of special monthly compensation (SMC), from November 26, 2008 was proper; restoration of entitlement to SMC is not warranted.

The severance of dependent's education benefits (DEA), from August 15, 2008 was proper; restoration of entitlement to DEA is not warranted.:

In part:

 "In further correspondence, the Veteran requested that his hearing be moved to the end of January 2017 or early February 2017, as he was on trial "in the same matter that is pending in your Division."  See Veteran statement, received by VA December 3, 2016.  

Indeed, the Veteran was indicted in September 2016, in United States District Court for benefits fraud and related charged stemming from unemployment applications he allegedly submitted to the Department of Veterans Affairs and the Social Security Administration, in 2008 and 2013, respectively.  See Defendants' Motion for Order Directing Release of Plaintiff's Disability Benefits Records, filed in the United Stated District Court, November 2016; received by VA November 4, 2016.  

VA rescheduled the hearing to January 31, 2017.  See VA correspondence, November 29, 2016.  VA called the Veteran on the day of the hearing, and he stated that he will not attend the hearing due to a "scheduling conflict."  See report of general information, January 31, 2017.            

A February 2017 rating decision discontinued the entitlement to TDIU, effective August 15, 2008.  See rating decision, February 2, 2017.  "

an:

"In August 2020, the Veteran filed a Motion to Reconsider/Clear and Unmistakable Error Due Process Violation/Request for Expedited Ruling.  See Veteran statement, received by VA August 27, 2020.  The Board acknowledged the Veteran's Motion in an October 2020 letter.  See VA letter, October 7, 2020.    

In February 2021, the Board vacated its May 2020 decision.  See Board vacatur, February 17, 2021.  The vacatur was issued because the Veteran requested a copy of his file in October 2016.  See Veteran statement, received by VA October 8, 2016; October 12, 2016.  There was no documentation in the claims file that the AOJ fulfilled this request by sending the Veteran a copy of the requested documentation.  As such, the FOIA request was still outstanding when the Board issued its decision in May 2020.  The issuance of the Board's May 2020 decision constituted an error requiring vacatur.  38 C.F.R. § 20.904.  Accordingly, the May 5, 2020 Board decision was vacated in its entirety.

In February 2021, the Motion for Reconsideration was ruled to be moot, and was dismissed, as the Board has vacated its May 14, 2020 decision.  See VA letter, February 23, 2021.  

The Veteran's FOIA request was fulfilled in July 2021. "

And more:

"Regarding VA fraud, the Report related that the VA Office of Inspector General (OIG) Criminal Investigations Division began an investigation in May 2014 after receiving information that the Veteran was fraudulently receiving TDIU benefits. The investigation determined that the Veteran was gainfully employed while simultaneously receiving TDIU benefits. See Presentence Investigation Report, received by VA December 20, 2017." (

This investodation might have began because of the SSA fraud, as SSA can share info with VA and Vice versa.It is probably at the VA OIG site.

And ( the decision included a creative litany of unusual statements the veteran made as to his work history,(including a spouse buddy letter.)

"In sum, despite the Veteran's contentions to the contrary, the evidence of record reflects that he was gainfully employed during the relevant period on appeal. He was not only gainfully employed, but also did not work in a protected environment such as a family business or sheltered workshop the Veteran owned and operated, and continued to own and operate, a large honeybee farm, and worked in several companies which he left for other opportunities. Notwithstanding this, the Veteran has been found guilty in federal court of providing fraudulent statements to SSA regarding his employment status. The Board finds that the record, outlined above, provides clear and convincing evidence that, at the time of the discontinuance of a TDIU, the Veteran was actually gainfully employed, and that his employment was not marginal. Therefore, the criteria for restoration of a TDIU from August 15, 2008 are not met and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, supra.

The veteran lost his TDIU, the DEA status for his children if he had any, and also SMC.

https://www.va.gov/vetapp21/Files8/21049161.txt

Where do these people come from?

Actually a bonafide wannabee taught me a lot, many decades ago- as I read his 17 page BVA decision, a denial of course. ( @1995)

I could not wait for the BVA to come on line then, as the BVA decision is what really helped me understand what the BVA needed that he Could not suppy- Evidence of a PTSD stressor. It seemed to me, that BVA took extraordinary steps to try to verify his stressors. I tried to as well.

He somehow had convinced his VA shrink that he had PTSD from Vietnam. That meant he was stuck with, in his claim, the horrific things he said had caused his PTSD in Vietnam ,to the shrink, and she even helped him get into the 21 day PTSD program in Buffalo NY. Some of the vets called me up ( my husband was in the program with them=(all Combat Vietnam)) teling me they had a wannabee in their midst. They were right but I never knew him until he contacted me after my huband died, a few weeks after he came home from the 21 day inhouse program.

I met 2 other wannabees in NY-one was head of a VVA Chapter ( never served in Vietnam per his claims) and the other was head of another vet org chapter in Rochester. When the members learned he had never served in combat or in Vietnam, they still maintained him as their Prsident because he had actually done a lot for Vietnam veterans.

We had a very disgruntled wife here long ago and she wanted me to report her husband to the VA,because she said he was working a full time job and receiving TDIU. Of course I ignored her request. None of us need to get involved in stuff like that. 
 

 

All I can say is wow. Not only do Veterans have to navigate through the minefields of VA system, but that some people exhibit this type of behavior, is beyond me.   So many of us out there that still need help, that have actually been wronged, yikes.  This was an interesting read, I'm glad you posted this, it gave me some perspective on being open to see, shenanigans are just not on Veterans Administrations, they can be caused by the other side of those taking advantage of system.  "Be truthful in all your endeavors, especially to one thine self"  Glad I had some java this morning.  Thanks for posting this Berta

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Whenever there is money involved you will always find, wannabees, cheaters and scammers. The really bad thing is that the VA put a lot of veterans/claimants in this category, and it is truly awful and unfair. It does catch up with them though.

 

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22 hours ago, Berta said:

This investodation might have began because of the SSA fraud, as SSA can share info with VA and Vice versa.It is probably at the VA OIG site.

Or a vengeful girlfriend could have got the ball rolling 😘.  I didn't read through the entire case, and I couldn't really keep up with you on the dates you presented, but two things come to mind. One is that he could have withdrawn applications where they apply and/or notify SSA and VA.  The second thing that comes to mind is how vague VA's "secure and maintain employment" seems to be, to me at least. Perhaps the maintain part is clarified on the application for TDIU itself, VA Individual Unemployability Form 21-8940.  VA makes a decision based on that. You can see what VA is driving at by looking at certain sections of the form.

VA's maintain is part of the decision criteria on the TDIU application, in questions 17a, 17b, and 17c.  What was the most you ever made and when and doing what? The veteran maybe answers that he made 20% over the poverty line 15 years ago in a span of 6 months. Question 18 looks to the most recent 5 years of work history (not just the past 5 years if one decides to just kick back and not work). And if one lies on this then the bottom of Section VI applies (the penalties).

In other words, maintain is not arguable in some future defense when a veteran is found gainfully employed, because TDIU's purpose is to compensate for the on-and-off employment that a SC disabled veteran experiences.

Once a veteran is gainfully employed the whole of the decision criteria of VA Individual Unemployability Form 21-8940 no longer applies. It has to be looked at again. If a veteran purposely abandons that decision and doesn't notify VA then that is fraud.

 

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14 hours ago, pacmanx1 said:

The really bad thing is that the VA put a lot of veterans/claimants in this category, and it is truly awful and unfair. It does catch up with them though.

Maybe VA assumes the opportunity is ripe for cheating and scamming and I would guess they should. Likewise, a TDIU application is ripe for VA mistakes, I think, the more information that's entered. I have never filled this form out. But right away I can see I have to add pages, like when it asks about my past training it can be shown that I have attempted to re-train or completed training about 15 or 20 times over decades. No joke. This is what SSA wanted to see. SSA wanted to see that I have tried everything (in the words of my SS disability attorney). Ha! Easy enough.  But on a TDIU application the 15 - 20 times adds to the prospect of VA mistakes, if in some cursory review it picks one training certificate and decides that I could do that without taking in the entirety of the picture, leaving me to argue the entirety of the picture.  There's no getting around this. I'm either truthful to the best of my ability on this form or I'm not.  When I look at my SSA work history since service it is abysmal, training or not. But yeah, VA Individual Unemployability Form 21-8940 will not be easy for me to fill out, short and sweet. It asks for training and education, but fortunately I already compiled all of that for my SSDI hearing so I'll just reach for that folder. 

Edited by Rivet62
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On 1/23/2022 at 6:09 AM, Berta said:

"3.  In a February 2, 2017 rating decision, the RO terminated the Veteran's TDIU benefits, effective August 15, 2008 [sic]"

Ouch.  Even if he hadn't been found to have committed fraud, that's A LOT to owe the VA in over-payment. Holy cow. 😳

"In February 2021, the Board vacated its May 2020 decision. See Board vacatur, February 17, 2021. The vacatur was issued because the Veteran had requested a copy of his file in October 2016. See Veteran statement, received by VA October 8, 2016; October 12, 2016. There was no documentation in the claims file that the Agency of Original Jurisdiction (AOJ) fulfilled this request by sending the Veteran a copy of the requested documentation. As such, the Freedom of Information Act (FOIA) request was still outstanding when the Board issued its decision in May 2020. The issuance of the Board's May 2020 decision constituted an administrative error requiring vacatur. 38 C.F.R. § 20.904. Accordingly, the May 5, 2020 Board decision was vacated in its entirety. The Veteran's FOIA request was fulfilled in July 2021. See VA letter, July 28, 2021."

I don't understand this part. Did the veteran concoct information that he said was part of his C-File??  And anyway, who trusts that the AOJ keeps documentation that they fulfilled a request for a claims file, much less when? I just don't understand this section.

And the part below is really scary because it can happen to anybody:

"As will be discussed below, a rating action proposed the reduction, and, thereafter, a rating action terminated the TDIU benefits."

You know... all I can say is keep clean. Do not ever assume that the government can't recall what you told them before...LOL. 🤣

This guy appears to have treated his applications for benefits at both the SSA and VA in a totally cavalier and paper pushing way, as if he attempted to outwit both at every step via paperwork and THEN he pushes it with NODs and appeals, practically begging them to find the faults. Just WOW. Just wear a sign saying "kick me I'm stupid" ...would have been easier and far less costly. I mean, do some people get a thrill out of trying the authority of government departments and agencies?

 

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