So many of you come to me and pose questions about Hepatitis C that we often overlook other subjects. I have recently been helping a relative in his final assault on Mt. TDIU. The ascent is always gradual with a few minor ratings squabbles but most assume once a threshold has been passed, a certain age attained or a compendium of percentages assembled, that it is a given. The Dead Circus just gave us all a wakeup call yesterday.
Edward W. Geib is no spring chicken. Assuming he was 18 or thereabouts in 1944, he can’t possibly be a day younger than eighty seven. Under most circumstances, this wouldn’t even be fodder for legal conversation. Octogenarians, especially ones on the far side of the midpoint are not considered prime candidates for employment. Well, “Not exactly.” as the Hertz rental car commercials and VA say. Apparently Eddie is hitting on all eight cylinders and capable of doing the Boston Marathon in VA’s eyes. Seems he’d be better off moving over to the VA pension line if he wants to get 100% of anything. What went wrong?
First, here’s the decision. You can refer back to it as you try to assemble this puzzle. Further, I attach the CAVC single judge decision as well. Judge Hagel is an asshole so you would expect nothing less than what he decided. GeibEW_11-1501
Ed was an 11B and probably got his trenchfoot in the Ardennes or one of those other wet, nasty places in eastern France, Western Germany or Belgium. He didn’t have the luxury of a nice warm, dry place like Vietnam. On top of that, he got an ear owie when a German artillery round landed near him. This will set you back into yesterday even if it just lands near you. I’ve been a quarter of mile away from a pair of errant Mark 82 500 lb. GPUs and they part your hair even at that distance.
Fast forward to 1946 and a 10% rating for left stinky foot only (not the right one, mind you). If it was anything like the jungle rot I came home with, it was stinky or so my future wife said. If you live with it, it is simply an interesting aroma you smell at night unless you sleep with your shoes on. 57 years later (2003) they caved in and gave him another 10% for the right foot. That’s 20% now and also bilaterally rated so he got another 10% of 20% on top of it (2%) which is good for bragging rights. As with the IRS, 2% rounds down-not up. Eighteen months later in February 2005, he finally got his long overdue rating for hearing loss. One can only wonder how it took that long to ascertain that (1)both feet probably got wet and (2) his damaged hearing deserved compensation. It must be that consarned VA backlog. Too many WW2 Vets crashed the system in 1946 and it took a while to sort it all out. That’s what happens when you give away free money.
As any of you know, getting money out of VA for hearing issues is akin to pulling teeth out of a live alligator that is overly fond of keeping the ones he has. Thus, if you get a hearing rating over 0%, chances are one of them (the ears) is only useful for hanging your eyeglasses on. It appears VA gave him a combined rating on both ears. Looks like they also threw in the obligatory 10% bone for tinnitus resulting in a combined 70% rating. I can almost see the lightbulb going on over his VSO rep’s head- TDIU, dude!
In 2007, the Edster decided to go for big TDIU. At eighty one, he probably was feeling a little long in the tooth and ready for some well-earned retirement. TDIU from the VA would pad his SSI nicely and he was entitled to apply for it as he qualified ratings wise.
As part of the application, the Edmeister honestly stated he’d been a carpet layer, carpet salesman, carpet consultant but never a carpetbagger. As such he was prepositioned legally to qualify. His employment had ceased in 1989 and he was old. By most standards, he qualified. Most standards, but not all. Age, in and of itself, is not determinant of TDIU success. Likewise, the nature of his disabilities were not considered so debilitating as to preclude work. What kind of work VA did not say but they insisted he could work if need be to make ends meet. VA is not an employment counselor.
Geib focused his whole argument on one- and only one facet- to his ultimate demise. He was accorded two separate C&P exams that looked at hearing and trenchfoot. The sum of his disabilities was his bone of contention. His argument? Why 38 CFR §4.15…
Total disability ratings.
The ability to overcome the handicap of disability varies widely among individuals. The rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; Provided, That permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. The following will be considered to be permanent total disability: the permanent loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or permanently bedridden. Other total disability ratings are scheduled in the various bodily systems of this schedule.
VA took a long look at this (in blue above) and figured what the hey? He sat at a desk for the last decade of his employment and was reasonably successful in his endeavours. His hearing, albeit frightful, still did not preclude him from operating a calculator or pencil. In sum, even with the requisite percentages needed to actually qualify for TDIU, the total of his disabilities ran afoul of another part of 38 CFR §4.15-that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. VA maintained that Eddie could sit and do work and if he got one of those fancy phones for the hearing-impaired or TTY, he’d be right as rain. Somewhere in all this being eighty seven was overlooked. Going down to Abbey Carpets and applying for a job in the showroom -or hell-even in the backroom- was pretty much nigh on to impossible. Employers are munificent people for the most part but few are inclined to hire the age-challenged. Old folks regularly get laid off when they get up in years because they lack the vim and vigor of their younger counterparts. Employers also resent paying the older folks a higher wage based on longevity. Ed was screwed because he waited too long to file. Nowhere was this factored into the Edmeister’s circumstances. Quite simply, his disabilities, rather than his age, did not rise to the level of precluding him from meaningful employment.
The Feds simply took this apart, examined the VA’s rationale of doing two different exams for two different, dissimilar diseases/injuries and came up with the conclusion that they had not intrinsically done anything untoward. He had a hearing disability-granted. That, in and of itself, was a liability but Mr. Geib had amply demonstrated in the past that he was capable of working around it. Lots of deaf people work. It’s merely a matter of finding a job where that is not prerequisite of employment. VA was not obligated to identify a job he was capable of doing but merely to point out that he was still employable if that was what he chose to do.
Similarly, he complained of the disability of trench foot and how it precluded standing or walking great distances like a mile or more a day. VA Repair order? Why, get a job that entails sitting, Mr. Geib. What could be simpler? Again, VA was under no obligation to supply a list of jobs which neither encompassed walking nor hearing well. They were tasked with deciding if he could work with his disabilities and decided in the affirmative. Next claimant?
I guess I can’t see how he thought he was going to beard the goat on this one. At eighty seven, it’s axiomatic you are not in the prime of your earnings window. Seems he should have armored up for this when he was about 65 or 66. Waiting until it’s bucket list time to go for TDIU is ill-advised. Hanging your whole argument on a turn of the phrase in §4.15 appears to be another poorly conceived legal strategy. And while I admire the law firm of Chisholm Chisholm & Kilpatrick Ltd., of Providence, Rhode Island for being such stand up law dogs for him, I could almost see the writing on the wall long before they got to 717 Madison Place NW in DC. As I tell my Vets, you have to have a plan for every contingency. This isn’t something you do on the fly. And you certainly start planning it out when you’re young if you’re dealing with the VA if you expect to prevail. On the other hand, maybe Fast Eddie should go down to the VA and apply for a job… If they turned him down, now there would be some fine TDIU evidence.