As many of you may know by now, the new VA Secretary is David Shulkin. You can see Dr. Shulkin's initial press conference by CLICKING HERE.
The new Secretary stated that disabled veterans can get "same-day" medical care at their local VA Medical Centers, but there are still long waiting periods for disabled veterans seeking new appointments in about 30 locations. Many of the VAMC's are running out of space, and as we all know, appeals of VA disability claims are backed up for years with no end in sight with no real accountability.
One of the big problems is that even if an employee is under consideration for "disciplinary action", the VA must still wait at least one month before doing anything while the out-of-control employee is still being paid!
While we are all hopeful that Dr. Shulkin will make a huge difference at the VA, I am sure many disabled veterans that are seeking care and benefits are not going to be holding their breath.
If you have been injured or contracted a disease due to care at a VA Medical Center, and you believe that it is due to medical malpractice or medical negligence, DON'T WAIT around as you only have a limited period of time in which to seek benefits. CALL HALE LAW OFFICE TODAY!
Most veterans or their families know about the federal benefits available to veterans, but it is sometimes unknown as to what benefits each State might offer. State benefits include things like free college and employment resources to free or greatly reduced hunting and fishing licenses. Most States also offer tax breaks and specialized license plates, some states provide the veteran with cash bonuses just for serving in the military.
Below is a handy summary of the benefits each State and U.S. Territory offers to our veterans as compiled by military.com. Be sure to check it out, there may be a benefit available to you or your family that you didn't know about!
No. In fact, TDIU (or just “IU) benefits are available under certain situations even if you are working. However, income earned from employment must be at or below the poverty level, or from a job that is considered to be “sheltered”. These types of employment are not considered as substantially gainful employment (SGE), but rather “marginal employment”. Marginal employment is considered as “earned annual income that does not exceed the poverty threshold for one person as established by the US Department of Commerce, Bureau of the Census.” For 2016, the poverty level for which a veteran must be working under was $11,880. Below is a graph of the poverty levels from 2011 through 2016.
Alternatively, a job in a “sheltered environment” (such as a family business, sheltered workshop, or a position created or modified to your own needs) is considered to be marginal employment, even if that job earns an income over the current poverty amount. Sheltered employment means that you are given special treatment due to your service connected disabilities that would not normally be given to other employees. For example: a veteran with PTSD works for a family friend’s business. The family friend provides the veteran with an office and duties that only require limited interaction with other people. The veteran’s salary pays his bills, and is over the current poverty threshold. But, because the job has been created to his individual needs (limited interaction with other people), his job is considered to be sheltered, and therefore falls under “marginal employment.” The VA cannot consider this job as being SGE, and must not use it against him in determining IU status.
One thing that the VA often overlooks is the requirement that a veteran be able to maintain employment. For instance, a veteran may be able to hold a job for a few months, but then loses the job due to his service connected disabilities. He then may be able to get another job for a few months, before losing that one, and the cycle repeats. In such a case, the veteran is able to get jobs, but he is not maintaining employment, and is eligible for IU.
So, what does this mean on a practical level? First, it means that VA law does allow for some veterans who work to also receive IU benefits at the same time, depending on the circumstances. Second, it means that disabled veterans who are working should not automatically assume that they are not eligible for IU simply because they work.
To get your IU benefits, you will need evidence of unemployment due to a service connected condition (or the limitations discussed above) and medical evidence. Evidence which may help you in proving your case could be letters from former co-workers or employers, medical evidence, or evidence from a vocational expert.
The VA must look at the veteran’s education and training, and how the current disabilities prevent the Veteran from working in the field in which he has been trained. If the veteran has participated in a VA vocational rehabilitation program, and still cannot work due to the service connected disabilities, the VA must also consider this as evidence that the veteran cannot maintain SGE.
It is also important for earnings to be examined in order to determine if the veteran is above or below the poverty threshold. A veteran can produce proof of earnings through pay stubs, tax returns, employer letters, or a Social Security Earnings Record. If the earnings are above the poverty threshold, an evaluation needs to take place to determine if the veteran is working in a “sheltered” environment as discussed above. The veteran will need evidence to prove that the workplace is sheltered, for example, an employer letter verifying the extra accommodations.
When it comes to proving to the VA that a veteran is eligible for IU, the best evidence is a professional opinion from a vocational expert or competent medical doctor concerning the veteran’s ability to secure or follow SGE. The opinion should say it is “more likely than not” that you are unable to work due to your service connected disabilities. The key here is “service connected.”
The VA often will schedule a veteran for a Compensation & Pension (C&P) exam to get an opinion on IU. The exam report must include a rationale as to whether it is as likely as not that the service connected disability or combined disabilities render the veteran unable to secure and maintain SGE. Additionally, the exam report must also include and describe the functional impairment caused by the veteran’s disabilities and how that impairment impacts physical and sedentary employment.
One thing to keep in mind is that if a veteran has multiple service connected disabilities that contribute to unemployability, the VA will likely send the veteran to separate exams for each condition. Each exam will discuss the veteran’s single disability and the functional impairment that the veteran has due to that single disability. For example, a back examiner may say, “The veteran can’t stand at all or can’t walk, but he could do sedentary work.” A migraine examiner may say, “He has to lie down at least once a week for several hours. As long as an employer will give that benefit, then he could work.” And then a PTSD examiner may say, “He doesn’t get along with people too well, so as long as he’s working by himself off somewhere, he’s fine.”
The problem is that the VA will usually look at these three opinions separately, rather than look at them together in order to create a complete picture of the veteran’s disabilities. If that is the case, the best thing to do is get an independent medical opinion that either looks at all the service connected disabilities together, or shows that one service connected disability in particular is the one that renders the veteran unable to work.
One option for an independent medical opinion is a vocational expert, but getting a vocational expert for your case might not be easy for many veterans. If so, another option is going to a VA vocational rehabilitation center and asking for an assessment. Again, it is important that any medical opinion you are able to get regarding your inability to work be limited to only your service connected disabilities.
IU is not always permanent, and you may have to undergo future medical exams to continue the award, once granted. But, there are safeguards in place that make it more difficult for the VA to take away an award of IU.
If the VA does not follow its own rules and regulations when proposing a reduction, the reduction is considered void and unlawful. If the VA has determined that your current disability rating warrants reduction, it must first issue a written notice of proposed reduction. This first notice gives you sixty days to submit evidence to show that your condition has not improved. You also have an option to request a hearing within thirty days of the notice of the proposed reduction. Requesting a hearing may buy you additional time to submit evidence.
Furthermore, there are several protections set forth in the regulations against a proposed reduction. One of those protections is for 100% ratings when based on unemployability. The VA has the burden to demonstrate that actual employability has been established by “clear and convincing evidence” in order to reduce or cut off IU. This is a very high burden to meet. Even if you are working, you are allowed to keep your IU for a full year. However, in cases where the veteran has not returned to work, then the VA has to have really good evidence to discontinue IU.
Under the regulations, if the VA determines that the veteran has sustained improvement and that such improvement warrants reduction of an IU rating, but the record reflects that the veteran is unable to engage in SGE, then IU must be continued. In other words, in cases where your disability has materially improved, your IU rating can still be protected from reduction if the evidence continues to show that you are unable to work due to your service connected disability.
If you submit evidence prior to the expiration of the first sixty day notice, there is a possibility that the VA will find reasonable basis to send you for a re-examination. If it decides to do so, the final rating action is deferred pending the outcome of the new examination. A very important point is that an examination that is the basis for reduction must be as thorough as the examination that established the current rating. Showing up for the VA medical examination is very important. If you do not show up, your benefits can be automatically reduced or terminated. If you are unable to attend on the date scheduled, you must call and reschedule, or have a very good reason explaining your absence.
The VA must review all of the new evidence, including the report of re-examination, in the context of the entire record. The VA will then issue a final rating decision. The second rating decision starts a new sixty-day period. The implementation of the reduction goes into effect on the last day of the month of the second decision.
This means that even if the VA reduces a disability rating, it can’t take away IU unless it has evidence of marked improvement that is clear and convincing, unequivocally demonstrating that you have regained the physical or mental capacity to return to the workforce on a sustained basis.