Veterans' Advocate Jim Strickland answers questions from VA Watchdog dot Org readers.

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Veterans' Advocate Jim Strickland provides regular columns for VA Watchdog dot Org.  If you would like to contact Jim about his columns, you can email him here...  The archive of Jim's articles is here...  To find an answer to a specific VA benefits question, use the VA Watchdog search engine... click here...  And, be sure to use Jim's:  A Military Veterans Guide To Disability Compensation and Pension Benefits -- A Compendium of Resources and Knowledge For The Disabled Veteran -- click here...   JIm's series for new vets, "Welcome Home," is also featured on Military.com. And, you can follow Jim on TWITTER here ...

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by Jim Strickland

NOTE:  Letters in my Q&A columns are reprinted just as they come to me. Spelling and grammar are left as is and only small corrections are made to improve readability, ensure anonymity or delete expletives that may offend some readers. This is not legal advice. You should always seek the advice of an attorney who is qualified in Veterans' law before you make any decisions about your own benefits.

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Jim;

You asked that I let you know when I attended my first doctors appointment at the VA. Since I wrote to you last, my ID card arrived via the mail and today I had my initial appointment at the VA clinic in downtown Los Angeles. It went very well.

Getting approved for the VA is a wonderful blessing and I am very grateful. I again have to say thank you to you and your organization. Without the information and encouragement you provided there is no way that this would have come to fruition. Thanks so much!!!

Reply;

Thanks very much for sharing that. As you get used to your VA health care, try to be patient. The system is overwhelmed with patients and sometimes doesn't seem as caring as it should be. I wouldn't trade my VA health care for anything though. My doctors have been outstanding and everyone I meet seems to be doing all they can to accommodate me.

And remember always...VA health care isn't "free". It's actually very expensive and you paid for it a long time ago when you sacrificed so much for your country.

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Jim;

Hope you remember me and hope you are doing well.I just got around(feeling bad) to call the lawyer you recommended.Fax him some paper work this morning.

You are not going to believe this.It blabber glassed me.I checked the mail box and a letter from the DAV was there,I figured they were asking me to join,instead it in formed me they had received the most recent VA decision(not official until I get it from the VA),that service connection is granted for Hepatocellular Carcinoma is granted at a 100%,service connection for mood disorder at 50% Hepatitis C&B with history of cirrhosis still at 20%. Entitlement to special monthly compensation.All of this was granted effective February 27 2009.Can you believe that.wow

If your readers listen to you like I did and get enough facts and data and being polite all the time may help them too.You did a great job on referring me,I followed and we won.Thank you so much I greatly appreciate you advice.I am not sure if my DAV rep help any as far as documentation and nexus letter but hey ,WE WON.

Reply;

Of course I remember you. That's great news!

Thanks for updating me. I'm very happy for you.

How about letting me know when you get the official letter, please?

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Jim;

I am forwarding to you my latest email to (my lawyer), so you can keep up on this if interested. I have been denied on my NOD so now the 3rd round is about to start. I asked (my lawyer) a specific question on whether to drop the appeal and go for IU instead. Would you also give me your opinion.

Thanks again for all your help to everyone. By the way another Viet Vet I helped is to get 100% for his Agent Orange problems. Your online articles have helped me help others and I use you as a reference all the time.

Reply;

I hope you understand that I won't offer an opinion. It's the old "Too many cooks in the kitchen spoil the soup" theory.

You shouldn't seek other opinions while you have an experienced and well trained, highly skilled advocate working for you. If you ask for another opinion, you'll probably get it and even if it's similar to your lawyer's advice, it may not be exactly the same.

That always leads to some degree of mistrust and confusion.

The best I can tell you is that I wouldn't hesitate for a minute to have (your lawyer) take my own case and I wouldn't second guess (your lawyer).

I know you didn't mean any harm but think about it. I get a lot of guys who I advise who come back to me telling me that a buddy won his case by so and so and why don't I do that?

Hang tight...let (your lawyer) work for you.

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Jim;

I am rated 80% UI, 20% back pain and 70% depression/PTSD. I separated in 05. When I got my rating I wasn’t sure what it all meant and it said I’d be re-evaluated in the future so I figured I had a couple years to prepare myself to return to work. I worked my butt off to finish my masters degree in that time. Those couple of years came and went and I started looking more into what unemployable meant and learned that I can go back to work, I just need to inform the VA. I have tried to find information on the internet about returning to work and its effects on your rating. All I seem to find is information on how to get disability, not how to get off of it.

My symptoms are something that I still struggle with but want to learn how to live with. I am still young and I can’t picture myself collecting disability and sitting at home for the rest of my life. With that being said I don’t want to risk loosing my disability or getting a lower rating by going back to work. What will happen to my disability money if I return to work? I know that the UI will come off and that is expected, but I still have my symptoms and need continued care for it so still need my rating. Another concern I have is not being able to hack it in the workforce and not having my disability income to support my family anymore. I am a single mom and do not want to take risks at not being able to provide. I’ve been out of the workforce for a long time now and I feel like the longer I wait the harder it will be to find a job and the harder it will be on me mentally and physically. I am an education major and if I want to keep my teaching certificate I need to start teaching this year. I haven’t had luck finding a position (maybe because of my depression), but that’s a whole other can of worm. A teachers income is not great and I would actually be taking a loss of income by returning to work, which is another reason I need to still get my 80% rating so I can
maintain the income I am currently at.

I read that you still collect disability for 12 months after returning to work. Wouldn’t you tell the VA you are returning to work at which point they would remove your UI, or do you wait until they send you the income verification form to get that 12 months income. I am afraid that they would question my whole claim if I return to work and would end up loosing my rating or even worse, owing them money. And let me assure you my claim is legitimate but it just feels like they don’t really make it easy for you to “get better” and get back to work. I looked into the voc rehab but they said I can’t do it because I am UI for a mental disease. I know they also have that “marginal income” clause, so would working at marginal income be included in those 12 months they give you?

I know I gave you a lot of information but I am lost and not sure what to do. I hope you could shed some light on this for me.

Reply;

You've asked a great question. You don't find much about this available because not many people consider returning to work. You're contemplating to use the system the way it should be used! Congratulations on taking such a thoughtful approach to your unique situation.

Here is how it will work for you...

If you are rated 100% Disabled using the Individual Unemployability (IU) route you aren't allowed to hold "gainful employment". Gainful employment is usually defined as any work that in 12 months time will produce an income in excess of the federal poverty level adjusted for your locale. That's roughly $10,000.00 to $12,000.00 per year.

You are allowed to hold "marginal employment"...that which will pay you less than those figures in a 12 month period. There are some other exclusions for a family owned business and so on but we won't try to cover all that today.

VA doesn't oversee a formal return to work program. It's up to you to report it after the fact. In a practical sense, that means that when you receive your yearly form, the VA Form 21-4140, you state your earnings there. During that time, VA will not automatically reduce your disability award.

Depending on how your work (and income) is spread out, you may have as much as 18 to 24 months of work before VA would act on the fact that you're earning money again.

To lower your rating, eliminating the IU benefit, isn't automatic as you might think. You would not likely be subjected to loss of the 80% rating but only the IU portion that allows you 100%.

The regulation;


Title 38: Pensions, Bonuses, and Veterans' Relief
PART 3—ADJUDICATION
Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation
Administrative

§ 3.105 Revision of decisions.

(e) Reduction in evaluation—compensation. Where the reduction in
evaluation of a service-connected disability or employability status
is considered warranted and the lower evaluation would result in a
reduction or discontinuance of compensation payments currently being
made, a rating proposing the reduction or discontinuance will be
prepared setting forth all material facts and reasons. The beneficiary
will be notified at his or her latest address of record of the
contemplated action and furnished detailed reasons therefore, and will
be given 60 days for the presentation of additional evidence to show
that compensation payments should be continued at their present level.
Unless otherwise provided in paragraph (i) of this section, if
additional evidence is not received within that period, final rating
action will be taken and the award will be reduced or discontinued
effective the last day of the month in which a 60-day period from the
date of notice to the beneficiary of the final rating action expires.
(Authority: 38 U.S.C. 5112(b)(6))


This means that VA must notify you in advance of their proposal to take "adverse action" on your benefits...removing the IU benefit and reducing you to 80% overall. You will then have certain well defined appeal rights that would allow you to petition VA to let you keep the benefit. For example you've discovered that you won't be able to continue the work due to your service connected disability.

Should you accept the adverse action and then 2 or 3 years down the road discover you couldn't continue working, you would have to apply for the IU benefit once again. It wouldn't be automatically approved this time and would have to go through much the same process as before.

The bottom line is that you don't need to notify VA in advance, just use the established 4140 reports on the anniversary of your award. Then, if things don't go well for you, you have quite a long period of time to discover that and adjust your work and reporting accordingly.

Good luck!

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TOPICS: veterans, veterans' benefits, VA, Department of Veterans' Affairs, Jim Strickland, Veterans' Advocate,