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USCAVC No. 17-0781 Ray v. Wilkie "Substantially Gainful Occupation" or "Substantial Gainful Activity"


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This court decision/discussion along with the other court cases cited in this decision is powerful important information for those holding a TDIU rating and thinking about doing any kind of work period while holding a TDIU rating.  Even volunteer non paid part time work can be a threat to a vet for continued TDIU rating that could be terminated at the whim of VA raters.  

This should be a must read for those with a TDIU rating including a P&T TDIU rating unless the vet has held the rating for more than twenty years and even then a U.S. District Court may convict the vet for felony fraud.  It has happened recently to a vet on a TDIU rating doing a lot of non paid volunteer work for an extended period of time.  Even after 20 years VA attorneys may say fraud was committed if the vet engages in their idea of what is substantial gainful work.

This latest court decision will not sit well for those holding a TDIU rating and do not want to hear or read it but that is real life now and for past 25 or more years and the CAVC and Federal Appeals Circuit Court will not demand but only ask the VA for a firm solid definition of what is substantial gainful employment and what is a protected work environment, etc.   

This court decision and discussion covers all what if scenarios of vets engaging in full or part time work or volunteer activities.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.combinededitedcroppedperkins507thDustoffmedevacUH-1Hrescuehoist.jpg.66e9e75bebf35a15ff490302ec523268.jpg

 

Edited by Dustoff1970
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That is something to think about if you do a lot of volunteering and are TDIU.  The thing is how would the VA know that you volunteer two days a week at the local library.  If you volunteer at the DAV or VFW in high profile situation that might not be good.  The weird thing is that most VSO's are disabled vets.  I believe that there is an age exemption for those who are TDIU and want to work.  If you are 70 years old will VA come after you if you bag groceries part time at the local market?

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This is a case where the VA raters often ignore precedent CAVC court decisions and even the 38 U.S. Code and 38 CFRs.  According to present and former senior VA raters (DROs) and VSOs if the VA raters "believe" you have obtained the "ability" to engage in substantial gainful employment then they can and sometimes do order up a revaluation C&P exam and/or simple issue the vet a reduction proposal of their TDIU rating.  They of course know the vet may win an appeal to their reduction of TDIU but they don't give a hoot.  key words are believe and ability.  Purely a subjective judgement call on the part of the VA rater (whim).

1. If they think you are deliberately working in a structured employment situation making below the court's definition of substantial gainful employment (Faust v. West) based on the area poverty income threshold for more than one year then this is a red flag to them.

2.  Even unpaid volunteer work can trigger a red flag to them depending on the type and extent of volunteer work.  Depends upon the whim of a VA rater if some one snitches on a vet to the VA.

3. There was a recent U.S. Federal District Court case that found a vet guilty of felony fraud for doing a great deal of volunteer non paid work for an extended period of time while drawing VA benefits for TDIU.  The vet should appeal that decision to higher appeals court.

4. These same rater and VSO pukes have a very narrow view of what they consider a sheltered work environment to be.  They of course receive IRS data sharing on any income that TDIU vets are receiving so buyer beware.  

5. For over 25 years I have been rated P&T TDIU due to Nam PTSD (single disability) and in last 5 years rated at 100% scheduler with SMC-S and at no time have I wanted to test the VA raters by engaging in any type of paid or volunteer work except a very brief period of part time work around 2002 or so.  Don't play with the devil as he always wins.  His game and rules in this type of situation.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

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Edited by Dustoff1970
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