Question:

Jim,

I am the individual who wrote you about the mess with the VA a couple of months ago, in trying to get a VA Form 21-0172 from them. Needless to say, nothing has been accomplished-but it has only been two months. If you will permit me to add another thought to your Mailbag IU (Vol #42) question today, maybe you will want to pass it on.

Last December, I received my yearly IU verification form (I believe it was the 5th of December). I just happened to notice the date on the letter was on/about the first of October. In short, I received the letter 63 days after the letter was dated and the VA said they had sent it out. As soon as I saw that, I knew I was screwed because the "60" day period to respond to it had passed.

To cut it short, after several calls to the VA RO (maybe it was the call center then), nothing was accomplished because nobody knew anything. So I returned it Certified mail (The day after I received it) with a note inside saying I had received it 63 days after the date on the letter. I guess it passed muster because I have heard nothing since.

I don't know if this was deliberate by the VA or if they just messed up. Either way, it reduced my life span. Perhaps you might want to advise everyone to look out for that when they receive their yearly IU form.

Thanks again for all the good info you put it in your mailbag. There is always something I can pick up on.

Answer:

I see a lot of that and I think it's a sure sign of what a mess the VARO's are in. Try to imagine running a business where that sort of sloppy work is the routine, not the exception. It's hard to believe but your letter was probably printed on the date of the letter...along with a few hundred others.

Then those letters were set aside. The intent was to get them to the appropriate place for mailing but something got them off track and they sat waiting for weeks then months. At some point someone noticed and they got mailed out.

I don't believe it was intentional or that there was a conspiracy to make your letter be delivered past the 60 day limit. I almost wish that I did believe that. Somehow it would be more of a comfort to believe that delays like that were intentional and part of a well thought out plan.

It's too bad that the truth is probably that this is how they run the business of caring for veterans. It's sloppy and there is no accountability for errors like that. No worker will be chastised for sending those letters out late. There won't be any meetings of managers to discuss how inconvenient that was for the veterans who, like you, were very concerned about losing benefits.

Last but not least, if you hadn't ever received that letter or if you didn't respond as you did, the VBA could have and would have interrupted your benefits because you didn't return your form in a timely manner. When it's your word against theirs, you lose every time.

Jim Strickland's Mailbag: Volume #47 for 2008

NOTE:  Letters in my mailbag 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.

06.18.08

Question:

Jim,

Recently my county VSO had me apply for (a) Increase in compensatiuon for PTSD and (b) Unemployability. I am presently rated at 60% (50% PTSD and 10% hearing loss and tinnitus).

She had me take a form (VA Form 21-4192) to the company that I retired from and this form called for what I made my last year of employment($65,000) and my retirement(if any). I receive a monthly annuity of $2970 gross a month from the company retirement.

I just don't see how the VA board that will determine my claim could approve me for IU because of my monthly annuity plus my social security. I definitely don't want to lost my 60% disability. Isn't there a certain amount that an individual cannot go over moneywise in order to get IU? This form was handed in to my VSO and she saw the numbers. She sent it all in with the claim. I am a little confused! Should I let it go or should she stop it? I don't want to take a chance on losing what I already have. HELP!

Answer:

I'm not sure why you're applying for unemployability? You tell me that you're retired, you have income from that and soon enough, Social Security. You have money from VA and good health care with no medication worries.

In later correspondence, when I asked; “Are you looking for a job and being denied because of your service connected disability?” you replied, “No Jim, I am not looking for a job. My Doc has been trying for two years to get me out of the work force because of my problems from PTSD, but I wouldn't do it because I didn't want management to know my problems and I wanted to continue working, but it was hard because of my problems. So I finally did was he wanted and retired. After a few months away from work I just became overwhelmed with anger, anxiety and terrible nightmares to the point that it was hard to handle. So my Doc had me go to my VSO and tell her about my situation. That's when she had me file.”

The rating of 100% Individual Unemployability (IU) is meant for a veteran who isn't rated at 100% schedular but who does have a service connected disability that precludes gainful employment. Gainful employment is defined as any job or work that earns you more than the federal poverty level...maybe $13,000.00 plus or minus.

Other sources of income don't count, only "gainful employment". I hear from guys who have a big win at a casino or an inheritance from Aunt Doris when she dies and they worry about losing the IU benefit. They won't.

Your case is tough because you haven't proven you can't work. In fact, even though work must have been causing you some anxiety and distress, you were able to stick with it and make it until you retired. At 62 you have a nice retirement check and Social Security...benefits a lot of guys won't ever achieve. Of course you also have your VA benefits that provide tax free money and health care for life.

Most guys I hear from who apply for IU have been fired from a string of jobs and have looked hard for another one and can't get work. Some, many, have been unemployed for years.

So...are you unemployable? Do you really qualify for the benefit? I believe you may qualify technically, according to the letter of the law. It'll be close though. VA will ask your long time employer "Why did he leave your company, did you fire him?" and they'll reply with, "He retired with a nice package."

Then VA will ask, "What have you been doing to seek employment?" Your answer will be, "Nothing. But I'd like to work, maybe."

Here's the down side...The application for IU will trigger a review of your current 60% rating.

When the rater (Ratings Veterans Service Representative-RSVR) opens your folder to review it all and decide if you're qualified for IU, it will be in his mind to look for any reason to reduce your benefit. If he makes a quick decision to deny IU, his next thought will be to reduce you.

For example, I'm currently working with a Vietnam veteran who asked to increase his 50% PTSD rating to 70%. He seemed perfectly positioned to do that. His evidence was all in order and supported the increase. Instead of an increase to 70% he received a denial letter and a "Proposal to Reduce" his benefit from 50% to 20%. The C & P exam he got while trying for an increase told VA he wasn't 50% after his years of treatment.

Any time you approach the beast we call the VBA and poke at it, you run a risk of creating a nightmare. If you are clearly qualified for a benefit, then that's what you have to do and the risk is worth it. But, as in our veteran earlier, sometimes even if you are clearly qualified, VA can make a mistake and away you go into a prolonged battle.

If you had asked me before you applied for IU, I would have advised you that you shouldn't apply for 2 reasons; I don't believe you meet the spirit of the rule and I believe that the application may subject you to an unnecessary and potentially dangerous review.

I'd have advised you to take some time for intense treatment of your PTSD...maybe over the next year or so. If you aren't working and you have good income, you can do that. If you then feel better about your life, look for a job. Then, if doors slam in your face because you have a service connected disability, at that time apply for IU.

But, you may find that you can work and hold gainful employment...a much better option than IU.

Finally...if you had written me and you had made the decision to retire but wanted to get IU, I would have told you that I think you are trying to game the system just for the money. But I don't believe you're doing that and that's really commendable of you. You're questioning the move yourself so you're keeping it real and honest.

You and I exchanged numerous emails and you tried to corner me to tell you what you should do. I wouldn't make your decision for you. Once you've started a process of application working with a VSO, I won't try to take over your case to prove the VSO wrong. The business of applying for a compensation benefit isn't a clear cut science and there are plenty of ways to get from A to B.

You've let me know that you have decided to call her and rescind your application for IU. You may come back at a later time to apply for a schedular rating of 100%.

Question:

Jim,

I'm 100% IU with the VA and also recieve SSDI. I don't normally file a tax return but I just recieved $3400 in inheritance in the sale of a house. Do I have to file a 08 return for this?Thanks.

Answer:

I'm no tax expert. I've had the same small local CPA firm doing my returns for nearly 20 years because my math abilities are seemingly nonexistent. Completing one of those EZ forms makes me sweat bullets.

What I do know is that the inheritance will not have any effect on your IU or SSDI. Both of those benefits are based on your ability to hold "gainful employment."

I often hear from veterans who have won a big one in a casino and worry that they will lose benefits. They won't and they don't have to tell VA or SSA about it. The same applies to spousal income. If your spouse works and makes a ton of money in salary and bonuses, it doesn't have any effect on your benefits.

My guess is that you'll have to pay taxes on the inheritance but it won't do anything to your benefits. You should speak with a tax expert.