david.m.pearson

D

david.m.pearson

PEB Forum Regular Member
Hello All: I have several questions concerning MEB/PEB and all that goes with it. OIF III Vet Oct04-Oct05
1. I filed for and was given VA copmensation 80% for several injuries: PTSD 50%, left shoulder tendonitus major 20%, lumboscaral sprain 40% and a fungal infection 0%. They denied disc herniation and radicolopathy left arm (apealed).
2. As a result of the above the New York Army National Guard scheduled me for a fit for duty physical which determined I was no longer fit for duty.
3. I was never counseled or given any guidence concerning the physical.
4. As of Jan 08 I recieved VA IU 100% and I was granted service connection for the neck injury 20%
5. My unit wants me to continue to drill, but this will effect my IU.
6. There were never any line of duty investigations done on my injuries and I have no idea where or what I should do next. I continue to request info from my unit but have heard nothing. what is my next step?
 
Hello, and welcome!

It sounds as if your unit wants you as an extra body, but they're not putting in any effort to inform you of anything. Am I reading that right?
 
David,

Welcome!

1) You cannot draw both VA compensation and DoD pay. Once DFAS sees you are getting both, you will waive your DoD pay (which is taxable now) in favor of your VA compensation (non-taxable).

2) and 3) You should have been given a PEBLO and they should have counseled you. But the failure to do so does not give rise to any right on your behalf (i.e., the failure will not effect your receipt of benefits).

4) and 5) Are they aware of your VA award? I think this is best addressed through command and medical channels. I would request, informally the first time, in writing thereafter, that you be excused from drill. I can envision some scenarios where they just carry you on the books (I have seen Soldiers get paid for YEARS and never drill) or they could go the other way and place you on orders to process your case. But, again, I would start with the command, and keep going higher. CO, BN, BDE, then Joint HQ. The IG is another route. Also, Article 138 UCMJ stil applies in the Reserves and Guard, and in an extreme situation may be appropriate ( in a nutshell, if you complain to your CO of a wrong and they do not redress it, the officer exercising General Court Martial Convening Authority has to investigate and forward the complaint along with resolution to the Secretary of the Army).

6) You could wrap up the request in the same procedure as above. In the alternative, per AR 635-40, a PEB can conditionally adjudicate cases as LOD Yes, even if no investigation has been done. I would prefer to have the LOD done, though.
 
In regard to the IU issue, here are some relevant regulations:


"(c) Individual unemployability. (1) In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of Sec. 3.105(e) are for application but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. When in such a case the veteran is undergoing vocational rehabilitation, education or training, the rating will not be reduced by reason thereof unless there is received evidence of marked improvement or recovery in physical or mental conditions or of employment progress, income earned, and prospects of economic rehabilitation, which demonstrates affirmatively the veteran's capacity to pursue the vocation or occupation for which the training is intended to qualify him or her, or unless the physical or mental demands of the course are obviously incompatible with total disability. Neither participation in, nor the receipt of remuneration as a result of participation in, a therapeutic or rehabilitation activity under 38 U.S.C. 1718 shall be considered evidence of employability.

(Authority: 38 U.S.C. 1718(f))

(2) If a veteran with a total disability rating for compensation purposes based on individual unemployability begins to engage in a substantially gainful occupation during the period beginning after January 1, 1985, the veteran's rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months. For purposes of this subparagraph, temporary interruptions in employment which are of short duration shall not be considered breaks in otherwise continuous employment. " 38 CFR 3.343


If you are only drilling, it won't qualify as substantially gainful employments.
 
Thanks for the info. My unit seems to want to move this along, but they don't seem to want to hurry it up. I think HR 4986 may be having some effect on this and thy want to proceed with caution.

My vet rep seems to differ with you on the I.U. and says drilling will interfere with the benefit. I would agree that it is not gainful employment and should not effect me.

My unit is aware of the 80% award, and I did advise them via phone of the I.u. but nothing in writing. Do they need more that a call, should I Send them a copy of the I.u. ?

I have raised the LOD question to my chain of command with no luck. I'm guessing they won't do it unless they are pushed into doing so.

Thanks
 
First off sorry to david I don't mean to take over you thread.

I do have alot of concern when it comes to UI. From what they are telling me with the combination of my commander writeing a letter saying that I'm unemployable and the fact that have revoked my driving rights under UCMJ and are working on getting them taken away through Indiana DMV. They are telling me that I will be most likely filed as UI with the VA. Now what does that mean can I no longer work hear and there when I feel well enough to or am able to stay awake. Or am I not allowed to work at all. The thing is I can not survive off the income from UI unless im not seeing the right figures. That amount is just not enough for me to sustain my standard of living. I do not believe I should have to alter my SOL because of the injuries that I sustained while serving my country. On the other hand I know that I will not be able to hold a part time or full time job. I will not be able to do a physical job either. So the only other thing that leaves me that I know is wood working so would I be able to do that type of stuff for sale and still collect UI? someone help me I need plans for life.:(
 
david.m.pearson said:
My vet rep seems to differ with you on the I.U. and says drilling will interfere with the benefit. I would agree that it is not gainful employment and should not effect me.
Click to expand...

Jason provides the regulations, you could fax them to the VA rep and see how he handles it. It seems to be spelled out where even I can understand it though, and that's rare. I would guess that behind the regulations is the idea that if you're working, and the income from that work puts you in or beneath the poverty line, then you would not be considered gainfully employed.

Although I would wonder why you would continue drilling when, as Jason said, the drill pay would be forfeit to the VA compensation. It's an issue I raised with the Navy Reserve recruiter during TAPs and he said it wouldn't be worth going to the reserves when getting VA compensation.
 
Army Strong,

Does IU put you at 100%? If it does, then that's somewhere in the neighborhood of $2,500 a month, tax free. If this is wrong, someone straighten me out right quick.
 
IU (Individual Unemployability) does put you at the pay scale of 100%. It means that if you get a rating of less than 100% from the VA but you are deemed not able to work then you will get paid at the 100% level. You are correct about the amount although it is a little higher with dependents. However the bad news with IU is that it does not provide health insurance or education benefits for dependents. If you receive a Permanent and Total rating of 100% then you receive health insurance and education benefits for your dependents.

damagedgoods
 
damagedgoods,
ha ha thanks for the information i was just trying to find that out when i got a popup stating that there was a new post good info. if you have anymore pertaining to that subject i would appreciate it.
Cameron
 
P&T is the better deal, but several states have some amazing educational benefits for veteran dependants, especialy dropping tuition costs. One may not completely offset the other, but you try to find the best options you have for a given situation.
 
Jason knows where to find the regulations for each, but go check out VBN and it has a section each for IU and P&T.
 
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