The Physical Disability Board of Review (PDBR) provides Veterans who were medically separated or discharged from their Military Service between September 11, 2001 and December 31, 2009, with the opportunity for review of their disability ratings to ensure fairness, consistency and accuracy. The PDBR was created by Congress as part of the Dignified Treatment of Wounded Warriors Act of 2008. Signed into law by President Bush on January 28, 2008, the PDBR began reviewing its first cases in June 2009.
WHO CAN APPLY TO THE PDBR?
To be eligible for PDBR review, a Veteran must have been medically separated between September 11, 2001 and December 31, 2009 with a combined disability rating of 20 percent or less, and not have been found eligible for retirement. Former reserve members with greater than 20 years of Total Federal Military Service yet with fewer than 20 years of Active Duty and who meet the criteria listed above are also eligible to apply. There are roughly 75,000 eligible Veterans who are eligible to apply to the PDBR under the stated criteria. In almost half of the cases reviewed by the PDBR (as of December 2011), the applicant’s Military Service Department has found the applicant eligible for a disability retirement and has awarded this to the applicant.
What could this mean for you and your family if your application to the PDBR is successful?
HOW DOES THE PDBR OPERATE?
The Department of Defense (DoD) designated the Air Force as the lead component to establish and operate the PDBR. The PDBR evaluates and reviews cases for all services (Army, Navy, Air Force, Marines, and Coast Guard) and their reserve components. Located in Arlington, VA, the PDBR is a true joint service board (and the only existing joint service disability evaluation and review board). Each case is jointly reviewed by representatives from three separate services (to include the service of the applicant). The PDBR examines each applicant's medical separation, compares DoD and Veteran's Administration (VA) ratings, and makes a recommendation to the respective Service Secretary (or their designee) as to whether or not the Secretary concerned should change a disability rating (which reflects a more accurate rating at the original time of separation) resulting in the Veteran's transfer to the Disability Retirement rolls.
By law, the PDBR may not recommend a lower disability rating for any rating reviewed. All changes to disability ratings that are approved by the Service Secretary concerned will be backdated and effective the date of the original Physical Evaluation Board. The PDBR exclusively uses the Veterans Administration Schedule for Rating Disabilities (VASRD) as its adjudication guidance in reviewing unfitting conditions considered by the Disability Evaluation System [Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB)]. If a particular condition was recognized and documented by the Service Department Disability Evaluation System, the PDBR will review it to ensure the Veteran was properly credited for physical ailments which may have caused the eventual medical separation of the Veteran. If a Veteran has a condition he/she feels should have been considered by his/her MEB or PEB, but it was not a part of his/her MEB or PEB, the avenue of redress is not through the PDBR; but instead through the Veteran's Board for Correction of Military/Naval Records (BCMR/NR).
Upon receipt of a Veteran's application, the PDBR will request copies of all applicable VA medical and rating documents as well as all Military Service Department Physical Evaluation Board related records, including the Veteran's Service Treatment Record (STR). The Veteran may submit any additional information pertinent to the request with his/her application. The review is records based only and no provision is made for a personal appearance by the Veteran or his/her representative.
WHY SHOULD I APPLY TO THE PDBR?
Since the PDBR began reviewing cases in June 2009, in more than 50% of cases, Veterans have had their original disability determination upgraded, resulting in a disability retirement for the Veteran. Although no guarantee of this re characterization rate can be made going forward, it is a good indicator of the degree of success applicants have had with the board up until now. If a Veteran is awarded a disability retirement as a result of the review process, it may not result in any immediate monetary gain by the Veteran (previously awarded payments from the VA and DoD as related to the original disability must be recouped by the government, prior to new payments being made; but this recoupment is made from the new monthly disability annuity payments going forward). Regardless, from the time of disability retirement award, the Veteran becomes eligible for all retirement benefits normally awarded military department retirees (health care, exchange, commissary, travel, etc).
Attorney Thomas J. Hetchler Jr retired from the Armed Forces with nearly 23 years of service. He practices in the areas of military and Veteran’s law. Find him on the web at MiVetLaw.com or Call 517-908-3480 or 866-98-THOMAS (84662).
Sources:
Military Health, http://www.health.mil/About_MHS/Organizations/MHS_Offices_and_Programs/PDBR.aspx, (accessed on 2-21-12)
Michigan Veterans Law and The Rock Star Factory, two Michigan based companies have joined forces, forming a non-profit entity called RockStar Warriors. RockStar Warriors (RSW) will work with our veterans to transition their skills acquired through their military service to the skills companies are craving in today’s workplace to create their competitive advantage.
“Our veterans have performed a service to us and to our country selflessly and heroically and RockStar Warriors will provide them with the services they now need to enter and successfully compete in today’s workforce,” said Julie Mann, CEO of The Rock Star Factory. (The Rock Star Factory is a JMann Consulting Group company.) “We continue to hear from employers in the state of Michigan that companies create competitive advantages through their people yet finding the right skills for their job openings is not always as easy as it appears.”
Rock Star Warriors recognizes the competitive advantage which is robust in the state of Michigan because of the high number of unemployed veterans and presents employers with a job seeking population that brings vast amounts of skills such as loyalty, work ethic, leadership, teamwork and the ability to exceed goals as they have done for our country.
“Companies are looking for candidates who can get things done and Michigan has a population of veterans that have a proven track record of just that, getting things done,” said Thomas Hetchler, CEO of Michigan Veterans Law.” “RSW is working with veterans to assist them to get it done and help Michigan companies get what they need.”
RockStar Warriors will be providing our veterans with the ammo needed to translate and communicate their military skills and experiences to the skills that Michigan companies are seeking today. Veterans, equipped with employability skills and job seeking tools, will also create the competitive advantage for our veterans to successfully be able to tackle the job market which is critical to finding and keeping the job. Through creating Veteran Friendly Employer Alliances, RockStar Warriors will also seek to clear the pathway for our hiring companies to connect with our veterans who are trained and ready to attack the job seeking market and bring their elite military skills to the workplace.
With the state of Michigan ranking amongst the highest with more veterans out of work than other states and with a population of over 700,000 veterans, including those most recently returning to this State, RockStar Warriors will be providing our veterans with the necessary skills to translate their military experiences into employer relevant skills to assure they have the same competitive position as the civilian population in the competition for the job opening.
Michigan Governor Rick Snyder has called the public and private sector to action to help combat the unemployment statistics of our veteran population. RockStar Warrior is the results of such a private sector collaboration between Michigan Veteran’s Law and The Rock Star Factory. The collaboration of these two companies, between the principal owners alone, brings to our veterans over 55 years of hands on military service and workplace development expertise. This is the winning combination which will showcase to employers that our veterans are indeed Rock Stars and is a winning solution for us all.
For more information on RockStar Warriors, please visit our website at www.rockstarwarriors.com, email us at info@rockstarwarriors.com and/or feel free to call either principal, Julie Mann at 517-507-7568 or Tom Hetchler at 517-908-3480.
Did you experience any unwanted sexual attention, uninvited sexual advances, or forced sex while in the military? Does this experience continue to affect your life today? Help is available!
By Thomas J. Hetchler Jr
Military Sexual Trauma (MST) is a term that the Department of Defense (DOD) and Department of Veterans Affairs (VA) use to refer to sexual assault or sexual harassment that occurs while the victim is still in the military. The definition includes any sexual activity where someone is pressured into sexual activities against his or her will. People often think that rape or the physical force of sexual activity is what we are talking about here. Not necessarily so. When an individual is threatened for refusing to be sexually cooperative, MST has likely occurred. Another example of MST could be where someone in a position of power implies faster promotions or better treatment in exchange for sex. Yet another example of MST is where an individual is unable to consent to sexual activities because of intoxication. Other experiences that fall into the category of MST include: unwanted sexual touching or grabbing; threatening or offensive remarks about a person’s body, sexual activities, or sexual orientation; and threatening and unwelcome sexual advances.
MST can affect a person’s mental health and physical health, even many years later. Some of the difficulties both female and male survivors of MST may have include:
-Strong emotions: feeling depressed; having intense, sudden emotional reactions to things; feeling angry or irritable all of the time.
-Feelings of numbness: feeling emotionally flat; difficulty experiencing emotions like attachment, love, or happiness.
-Trouble sleeping: trouble falling asleep or staying asleep; disturbing dreams or nightmares.
-Difficulty with attention, concentration, and memory.
-Problems with alcohol and other drugs.
-Difficulty with things that remind them of their experience of sexual trauma: feeling on edge, jumpy; difficulty feeling safe; going out of their way to avoid reminders of their experiences; difficulty trusting others.
-Difficulty in relationships: feeling isolated or disconnected from others; abusive relationships; trouble with employers; problems following orders; problems with authority or authority figures.
-Physical health problems: sexual difficulties; chronic pain; weight or eating problems; gastrointestinal problems.
HOW TO GET HELP.
The VA provides free, confidential counseling and treatment to male and female veterans for mental and physical health conditions related to experiences of MST. Reservists and National Guardsmen can also get treatment at the VA even if they are still serving in drilling status. You do not need to be service connected and in some cases you can get this help even if you are not eligible for other VA healthcare services. You do not need to have reported the incident when it happened or have any documentation that it occurred. Military OneSource can often help victimes of MST. You can reach them at 800-342-9647. If they cant help you, contact Michigan Veteran's Law.
DISABILITY COMPENSATION FOR CONDITIONS RELATED TO MILITARY SEXUAL TRAUMA (MST).
Veterans can receive compensation for disabilities that began or got worse on military duty, including disabilities or injuries resulting from MST. When veterans, including drilling reservists and national guardsmen, apply for disability compensation, the VA will determine whether there are current disabilities related to military service. Compensation is based on the severity of the disability.
This is often very difficult for the veteran to undertake by themselves. Veterans are very hesitant of opening the “can of worms”. They don’t want to make waves. Michigan Veterans Law has partnered with behavioral health professionals in the civilian sector to help with the process. These professionals are veterans themselves and confidentiality is absolutely guaranteed. We can and will help you with this process. We are just a call or e-mail away.
Attorney Thomas J. Hetchler Jr retired from the Armed Forces with nearly 23 years of service. He practices in the areas of military and Veteran’s law. Do you need help obtaining VA Benefits or qualifying for VA Education? Find him on the web at MiVetLaw.com or Call 517-908-3480 or 866-98-THOMAS (84662).
How can I Speed Up my VA Claim?
The Department of Veterans Affairs is a federal agency. Congressional complaints and inquiries have little effect on the VA. If they indeed had positive influence, we wouldn’t have to wait so long for our claims. Would we? As of today, claims in the Detroit VARO average over 400 days from submission to decision. Congressional inquiries rarely speed the process, in fact, they usually slow it down. Your claims file (C-file) is literally sitting on a desk awaiting a decision from a VA employee. Anyone who has ever visited the inside of the regional office has seen stacks and stacks of files on the desks of employees. It looks like a huge rat’s nest but the employees claim to know where the files are in the pecking order from when they came in. The file sits there until the employee gets to it. Remember, they are over 400 days behind at this point. You are tired of waiting... rightfully so, so you call your senator or congressman.
Most senators and congressmen have liaisons that help them with Veteran’s issues. The liaison files an inquiry with the director of the VARO. In turn, most directors have a congressional liaison that only works with these types of inquiries. Why would a director need this kind of employee? You guessed it! It’s because they have so many inquiries, they need someone dedicated to answer. The liaison goes to the employee that has your file. The employee pulls your file from the rat’s nest. The employee generates a form letter from their cut-and-paste machine with your name and claim number on it. The letter says that they are experiencing a high volume of claims. And that they promise to work on your claim as soon as possible. Please be patient as they work your claim. The letter is mailed to your senator or congressman. A copy of that letter is generally mailed to the Veteran at the same time. The senator sends you a beautiful letter that says thank you for your service, thank you for contacting them, and your claim has been received by the VA. They will tell you that the VA is diligently working your claim and that you should remain patient.
Meanwhile, your c-file has been pulled from its place in the pecking order. Often, the file goes back to the pecking order as if it had been received today. Everyone means well. Everyone says they want to help you; however, this inquiry has just cost you valuable time. Like the lunch-line at school, you lost your place. No cuts.
Speed it up!
So how can you speed up the process? The short answer is you can’t. Veterans call the toll-free number and get an endless series of automated prompts. Occasionally, Veterans get hold of the super secret direct-line. Even if they reach a live person, help is seldom obtained. It is very frustrating and there is quite a bit of talk about process improvement right now. You should voice your opinion whenever possible, but in my opinion do not, I repeat, do not complain about your own claim or you might find yourself waiting longer.
Improve it upfront!
You can improve your position by making sure the claim is as complete as possible to begin with. Include evidence with the original claim. And consult with an accredited agent before filing your claim. The better the claim is at the beginning, the better off you will be.
The good news is that when a claim is finally approved, the claim is paid back to the date of the claim. This results in a nice check with the back pay. If the VA denies your claim, you can preserve your claim and effective date if you meet all of the statutory deadlines in filing the appeal. Unfortunately, some Veterans pass away before their claim is approved. The surviving spouse usually has the right to file what is called a Dependency and Indemnity Claim (DIC). It is also possible for a spouse to substitute-in as the claimant to preserve the date of the Veteran’s original application.
Appeal the VA Decision!
If you need to appeal your case, the same applies. Get a copy of your C-file from the VA see what is missing and try and get medical records and other evidence in as soon as you can. If the VA asks something from you, send it to them as fast as possible. The VA has duty to assist, but don’t rely on them to get everything. Be proactive and get what you need to win your case and send it in. When you get a Rating Decision or Statement of the Case read it and see what they say you are missing from the file. Many times what they say is missing is actually in the file but you will only know this if you have the file. Know what you have to prove to win your case and get the evidence you need to do so. If you don't understand the process and what you need to prove research it or get the help of an accredited lawyer or representative. Don't miss deadlines. Don't miss VA medical exams.
If your appeal is at the Board of Veterans Appeals (BVA) and you submit new evidence and you don't want your case to be sent back to RO make sure to let them know by waiver not to send the evidence back to RO for review. You can't do much to speed up the VA side of the claim but you can do all you can on your side to make sure your case is ready for a fair decision.
Attorney Thomas J. Hetchler Jr retired from the Armed Forces with nearly 23 years of service. He practices in the areas of military and Veteran’s law. Do you need help obtaining VA Benefits or qualifying for VA Education? Find him on the web at MiVetLaw.com or Call 517-908-3480 or 866-98-THOMAS (84662).
Security Clearance Denial or Revocation.
by Thomas J. Hetchler Jr
Does the government want to revoke your security clearance? Or are there issues that you are worried about when applying for a security clearance for the first time? One of every five applicants has difficulties in obtaining a clearance. Michigan Veterans Law is highly experienced at representing both individuals who are applying for a military security clearance for the first time and those who are attempting to retain their military security clearances.
Your security clearance is one of the most valuable features of your military career. It is issued based on a thorough investigation of the applicant’s fitness for a security clearance, and the possibility of the clearance being revoked is a matter of major importance. Did you know that if you already have a secret clearance, and you later apply for a top-secret clearance and are denied, your entire clearance can be revoked? It's true. Your military career and future after the military could be be affected.
Reasons for Denial.
There are many reasons that an adjudicator might use as the basis for a denial or revocation of a military security clearance. The disqualifying reasons may seem relatively minor. Some of the most common reasons for denial/revocation involve an applicant’s:
You need legal representation!
If an individual is notified that his or her military security clearance is revoked, it’s crucial to obtain knowledgeable, experienced legal representation. Michigan Veteran’s Law has helped several servicemembers retain their clearances. Contact us to discuss your security clearance matter with us. Our conversation will remain private. Bring the written "intention to deny" letter regarding your military security clearance denial or revocation, plus all other relevant information that you have for a thorough evaluation of your case. An appeal of your security clearance denial/revocation may be the next step. The procedure for an appeal depends in part on which branch of the military is involved. Every individual’s case has its own unique circumstances, but the relevant laws provide a consistent structure that can be dealt with by an attorney with years of experience in this area.
If you have security clearance issues, you should call a qualified security clearance lawyer. Ask if your lawyer has actually served in the military. Ask your lawyer if they have actually succeeded in saving security clearances. Call Michigan Veteran’s Law today.
Attorney Thomas J. Hetchler Jr retired from the Armed Forces with nearly 23 years of service. He practices in the areas of military and Veteran’s law. Do you need help obtaining or protecting your security clearance? Find him on the web at MiVetLaw.com or Call 517-908-3480 or 866-98-THOMAS (84662
Effective October 1, 2011, the Servicemembers’ Group Life Insurance Traumatic Injury Protection benefit (TSGLI) became available for all qualifying injuries incurred during the period October 7, 2001 to November 30, 2005, regardless of the geographic location where they occurred, and regardless of whether the member had SGLI coverage at the time of the injury. The Veterans’ Benefit Improvement Act of 2010 removes the requirement that injuries during this period be incurred in Operations Enduring or Iraqi Freedom.
Former Reservists and National Guard members who were injured during the retroactive period and suffered a qualifying loss are eligible for a TSGLI payment. Even those injured in car accidents or other civilian traumatic events that occurred when the member was not drilling are eligible for a TSGLI payment if they had a qualifying loss resulting from their injuries.
Contact us for more information!
Attorney Thomas J. Hetchler Jr retired from the Armed Forces with nearly 23 years of service. He practices in the areas of military and Veteran’s law. Find him on the web at MiVetLaw.com or Call 517-908-3480 or 866-98-THOMAS (84662).
How do I prove to the VA that I have PTSD?
By Thomas J. Hetchler Jr.
October 18, 2011
PTSD is a debilitating anxiety disorder that affects each person differently. It is usually triggered by exposure to an extremely traumatic event where the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and the person’s response involved intense fear, helplessness or horror such as combat, a car accident, or personal or sexual assualts.
According to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), symptoms include uncontrolled anger, violent behavior, exaggerated startle response, flashbacks, hallucinations and blackouts. Service members and veterans with even moderate PTSD are often unable to work, go to school or have functional relationships with others. One of the scariest things about PTSD is that it can take months, years or even decades for symptoms to appear. While PTSD can be successfully treated, there is no known cure.
Why do I have to prove that I have PTSD? VA regulations require that in order to receive VA benefits for PTSD, a veteran must prove that the disorder is related to his or her military service. To prove service-connection for PTSD, there must be: (1) medical evidence of a current diagnosis of PTSD, (2) medical evidence that establishes a link between PTSD and a stressor during military service and (3) credible supporting evidence that the claimed stressor during service actually occurred.
If the veteran was in combat and the stressor is combat–related, the VA is required to accept his or her account of the in-service stressor as proof that the stressor occurred. If there is no evidence of combat, the veteran must produce military or other official documents that establish that the stressor occurred, even if the claimed stressor is combat-related.
Proving that a stressor occurred during service is often quite difficult, sometimes taking years for the VA and/or the veteran to find. Because of the backlog of pending VA PTSD claims, the VA decided to eliminate the requirement for veterans to produce credible supporting evidence of a stressor if they received a diagnosis of PTSD during service and the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service. In these cases, the veteran’s description of the stressor alone will now be sufficient to establish the occurrence of the claimed in-service stressor for benefits purposes.
Veterans who experience symptoms of PTSD should contact their nearest VA Medical Center for support and treatment. National Guardsmen and Army Reservist are entitled to VA care even if they continue to serve in a reserve drill status. Receiving care and treatment is an important first step. However, requesting treatment is not the same as requesting compensation. Veterans must request compensation separately. I recommend that they use a qualified, trained, accredited veteran’s service officer to assist in the claim.
If the VA denies your claim for service-connected compensation, we can help you appeal that decision. We are accredited with the VA and are licensed to appear before the US Court of Appeals for Veteran’s Claims.
Attorney Thomas J. Hetchler Jr retired from the Armed Forces with nearly 23 years of service. He practices in the areas of military and Veteran’s law. Find him on the web at MiVetLaw.com or Call 517-908-3480 or 866-98-THOMAS (84662).
February 14, 2011
As the former Chairman of the Ingham County Veteran’s Advisory Board, I would review applications for monetary support with my fellow board members. In Ingham County, we have a small fund set aside to help Veterans in need. We review applications for help with groceries, utilities, rent, and the like when the Veteran has trouble making ends meet. Occasionally, we can’t help the Veteran because the type of help requested is outside our abilities or the Veteran doesn’t meet our qualification standards. Sometimes the amount requested is simply too large for us and we refer the Veteran to the Michigan Veteran’s Trust Fund (MVTF).
What is the Michigan Veteran’s Trust Fund?
Temporary assistance granted by the Michigan Veterans Trust Fund (MVTF) for emergencies or hardships is available to eligible wartime Veterans, and their families, residing in the state. Under the authority of Public Act 9 of 1946 (as amended), the MVTF cannot provide assistance for long-term problems or chronic financial difficulties. Those eligible for the MVTF temporary grant program must apply through the MVTF county committee serving their county of residence. All applications are investigated, deliberated, and decided in confidence. Any applicant may request a personal hearing before the county committee at the meeting when his/her application is considered. If the county committee denies an application every applicant has the right to appeal that decision to the MVTF Board of Trustees, with the opportunity to appear before the board to present information and answer questions. The MVTF does not provide loans under their temporary assistance program.
Applications for assistance are submitted in the Veteran's county of residence. Points of contact for each of the county committees can be found in the Michigan Association of County Veteran’s Counsellors website: http://www.macvc.net/forum/viewforum.php?f=4 Call your county counselor and tell them that you are interested in requesting temporary assistance from the Michigan Veteran’s Trust Fund.
General Definition of Need
When an eligible Veteran is unable to temporarily provide the basic necessities of life in our society without causing a hardship, a situation for a possible MVTF grant exists. The assistance must be essential and not for the relief of an inconvenience, or the purchase of a want/desire. The key factor in determining whether or not a grant is justified is the ability of the applicant to manage the obligation for which aid is requested after a grant is made. If there is no reasonable expectation that the MVTF grant would enable the applicant to resume his/her responsibility, then aid is not appropriate or wise. Since the MVTF only has the yearly earnings of the trust to provide grants and administer its operations, care must be taken to insure that the resources are expended wisely and where they will help the most. If, by experience with the MVTF or through other means, an applicant's financial situation creates repetitive "emergencies" or appears chronic in nature, the county committee and/or the board must refer that person to other resources designed to address those lingering needs. In addition, the applicant should have attempted to resolve the emergency or hardship through every reasonable means available prior to asking the MVTF for assistance. (Often the willingness to take responsibility for one's difficulties is demonstrated by the ability to pay a portion of the debt). In other words, the applicant should have tried to resolve the problem, but is apparently unable to do so without MVTF aid.
Basic Eligibility
To be eligible for a grant from the MVTF, a Veteran or dependent must be a legal resident of the State of Michigan at the time of the application. The Veteran must have been discharged under honorable conditions, with at least 180 days of active wartime service (90 days for WWI Veteran), or have been separated as the result of a physical or mental disability incurred in the line of duty (or aggravated by active duty). Service during the following periods (or an Armed Forces Expeditionary Medal, plus 180 days of honorable active duty, for service between periods in places such as Grenada, Lebanon, Berlin, Persian Gulf, Mayaguez Operation, or Desert Storm) is required:
If a Veteran has less than 180 days of active duty during these eras, duty in more than one period may be combined. Evidence of separation or discharge with less than 180 days of wartime service due to a physical or mental disability is required to determine eligibility.
Documentation
The following items are required when filing an application for trust fund assistance:
One or more of the following items may be required when filing an application for trust fund assistance:
Attorney Thomas J. Hetchler Jr retired from the Armed Forces with nearly 23 years of service. He practices in the areas of military law and Veteran's law. Find him on the web at MiVetLaw.com or Call 517-908-3480 or 866-98-THOMAS (84662).
______________________________
Sources:
Ingham County Veteran’s Affairs http://www.ingham.org/va/; (Accessed on 02-14-2011).
Michigan Department of Military and Veterans Affairs, Emergency Grants, http://www.michigan.gov/dmva/0,1607,7-126-2362_2376_2380-8892--,00.html (Accessed on 02-14-2011)
What is VA Individual Unemployability?
December 15, 2010
Is it true that I can be rated by the Veteran’s Administration at the 100 percent rate, even if I have a service-connected disability of less than 100 percent? Yes, it is true!
Total Disability based on Individual Unemployability, affectionately referred to as “TBIU” or simply “IU”, is a program that allows the VA to pay certain Veterans at the 100% rate even though the VA has not rated their service-connected disabilities at the total level.
How do I qualify? You must be unable to maintain substantially gainful employment as a result of your service-connected disability, PLUS
- One service-connected disability rated at 60 percent or more, or
- Two or more service connected disabilities, with at least one of those being rated at 40 percent or more with a combined rating of 70 percent or more.
So what exactly is “substantially gainful employment”? According to the VA, substantially gainful employment is defined as employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.
That’s clear as mud! What does it mean?
Marginal employment is generally deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Census Bureau as the poverty level for the Veteran only. In 2009, the Census Bureau said that the poverty threshold for one individual was $10,956 per year.[i] As such, a veteran who earns less than the poverty threshold generally will not be subject to revocation of IU Program benefits.
Furthermore, the VA generally holds that an IU Veteran may also keep earned income under two other circumstances such as gainful employment of less than twelve months or fact-based marginal employment. [ii]
First, substantial gainful employment of less than twelve continuous months is generally considered marginal employment. This is true even if the Veteran earns more than the poverty threshold amount for that year. A common example of this is when the Veteran is employed on a seasonal basis. It should be noted that the VA will look for circumstances where the IU Veteran tries to “game” the system by working just short of twelve months and takes a small break in employment before resuming work in the next twelve month period. Regular employment with occasional breaks will likely be considered substantial gainful employment and the Veteran will have to pay back any benefits received as a result of fraudulent claims. Once more, although rare, the Veteran could face civil or criminal charges for fraud.
Secondly, the VA may determine that the IU Veteran has fact-based marginal employment when the otherwise gainful employment is considered marginal when it occurs in a protected environment. For example, if the IU Veteran earns more than the poverty threshold but works in the family business or a sheltered workshop program, the VA will determine that the employment is marginal and will not revoke the IU Program Benefits.
When can the VA revoke my IU Claim?
If the Veteran earns income in the three approved employment situations AND/OR the Veteran sent in required annual Employment Questionnaire then I would argue that the VA does not have the legal right to revoke existing IU claim by DVA Rater contrary to rumors and veterans turning in other veterans for “fraud“.
Conversely, the VA will enforce the IU program and recommend revocation regardless of whether a Veteran earns a single dollar when the Veteran fails to send in the Annual Employment Questionnaire on the anniversary date of the IU award. The enforcement process will occur even when the employer provides protected environment; when gainful employment is less than 12 continuous months; or when the Veteran has marginal employment. The enforcement process will verify if income earned was part of the three approved employment situations. This enforcement process is not to be confused with administrative action by DVA Rater.
Should the IU Veteran choose to be employed, he or she should be knowledgeable of the VA standards for enforcement of IU in order to avoid having benefits rescinded because of earned income under these three employment situations. This is a very fact intensive feature of the law and you should consult a qualified Veterans Lawyer to guide you.
Does it matter if I am employed before or after I am determined to be IU?
While employment may be beneficial for Veterans that already have an approved VA Claim for IU (or Social Security Disability/SSI), Veterans considering filing a VA Claim for IU while working even under what could be marginal employment could have a negative result. This may be because the standards regarding employment for IU Veterans as outlined in the WARMS VA Manual [iii] which is used for the initial IU determination is not as extensive as Training Letter 07-01. Veterans should understand the three basic situations in which employment is authorized for IU recipients.
Who can help me apply? I often recommend Veterans see their local County VA Counselor or Veterans Service Organization to help in the initial application for benefits. Beware of organizations that charge you a fee to help you apply for benefits. Many, if not the majority of these claims are denied by the VA. You should consult with a qualified Veteran’s Lawyer to help you appeal any negative VA Decisions.
Attorney Thomas J. Hetchler Jr retired from the Armed Forces with nearly 23 years of service. He practices in the areas of military law and Veteran's law. Find him on the web at MiVetLaw.com or Call 517-908-3480 or 866-98-THOMAS (84662).
[i]
http://www.census.gov/hhes/www/poverty/data/threshld/index.html accessed on 12/10/2010.[ii] See Training Letter 07-01, CFR 3.343, Faust v. West, and VA Manuals.
[iii] WARMs VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section F
Notes:
DVA Training Letter 07-01: Total Disability Ratings Based on Individual Unemployability (IU).
PARA 1.b. Unemployability
1. Unemployability means the inability of a veteran to secure or follow a substantially gainful occupation.
2. However, a finding could be made if the evidence shows marginal employment.
3. Marginal employment is defined in terms of a veteran’s earned annual income.
4. This income should generally not exceed the government’s established poverty threshold for one person.
5. Exceeding this threshold may indicate substantial gainful employment, as noted by the Court of Appeals for Veteran’s Claims (CAVC) in Faust v. West, 13 Vet.App. 342 (2000),
6. In addition to income criterion, evidence showing that employment is marginal rather than substantially gainful may also exist on a “facts found” basis.
7. Examples of this marginal status include employment in the protected environment of a family business or sheltered workshop.
8. Such fact-based marginal employment is consistent with a finding of unemployability.
PARA 5b AND 5a.
5. Continuing Requirements for IU Award
5.b. Income Verification Match (IVM) and Field Examinations
1. The IVM is a method of comparing an IU recipient’s earned income, as reported to VA by other federal agencies, with the earned income limits that define marginal employment.
2. If income reports show significant earned income above the poverty threshold, the regional office must undertake development to determine if the veteran is still unemployable.
3. Another method of monitoring unemployability status among IU recipients
is through the VA Fiduciary Activity[veterans rated incompetent] . This service conducts field examinations when it has been notified that an IU recipient might be pursuing a substantially gainful occupation.
4. A decision must then be made as to whether the IU benefit will be discontinued. This determination must take into account the regulatory requirements listed above, including: (1) whether there is actual employability by clear and convincing evidence AND (2) whether there has been substantially gainful employment for TWELVE continuous months.
5.a. VA Form 21-4140
VAF 21-4140 returned showing employment
1. If VAF 21-4140 is returned in a timely manner and shows that the veteran has engaged in employment,
2. VA must determine if the employment is marginal [either annual income OR fact found] or substantially gainful employment.
3. If the employment is marginal, then IU benefits will continue uninterrupted.
4. If the employment is substantially gainful, then VA must consider discontinuing the IU benefit. .
5. Additionally, if the evidence shows that the veteran actually is engaged in a substantially gainful occupation, IU cannot be discontinued unless the veteran maintains the gainful occupation for a period of 12 consecutive months.
6. VA regulations at 38 CFR 3.343(c ) For purposes of this subparagraph, temporary interruptions in employment which are of short duration shall not be considered breaks in otherwise [twelve months] continuous employment.
VAF 21-4140 not returned
1. If VAF 21-4140 is not returned within the 60 days specified on the form, then the regional office must initiate action to discontinue the IU benefit pursuant to 38 CFR 3.652(a).
2. . After the initial IU award has been made, the veteran must submit a VAF 21-4140, Employment Questionnaire, on a yearly basis to certify continuing unemployability.
3. . The VAF 21-4140 is required unless the veteran is 70 years of age or older, has been in receipt of IU for a period of 20 or more consecutive years (as provided at 38 CFR 3.951(b)), OR has been granted a 100 percent scheduler evaluation.
VAF 21-4140 returned with no change
If VAF 21-4140 is returned in a timely manner and shows no employment, then IU benefits will continue uninterrupted.