Date of eligibility for TDIU based on 'intent to file' and

Question:

I need help. This is very long, yet it’s only 2 VERY simple questions total. This is the VA: not giving answers to 2 simple questions. No guidance, no regulation book to be clear about them…nothing. I have been all over the internet as well as on the phone with the VA NUMEROUS TIMES, and nobody can give me definitive guidance about two things. I will ask both in one small paragraph very cut-and-dry and clean… and then I will expound and expound in order to make it IMPOSSIBLE to misunderstand. If you can help me at all and point me in the right direction, PLEASE HELP. Here we go (by the way my capital letters aren't yelling at anyone, just think of them as italics):

I received a 70% disability rating by the VA back in 2008. Since then, over the past 5 years these issues hindered me greatly and I have had to withdraw over 6 semesters of college as well as couldn’t work because of it, either. I heard about VA’s “Individual Unemployability” and it sounded like it described me and my situation perfectly, so I submitted my letter of intent to apply for a claim increase in December of 2019. I then completed filing my claim in February of 2020, and shortly afterward (after 2 C&P exams) was awarded with an increase of my rating from 70% to 90%, and was awarded with “Individual Unemployability” status. I received notification of this in April of 2020 by the VA.

My two questions: 1. I received I.U. back-pay dating back to the date of my INTENT to file for this increase, which was December of 2019. My question is this: Is it at all a possibility to receive more back-pay than what my “intent to file” date is? I have many documents from 2 school’s I attended–both of their registrars, both the school’s “Americans with Disabilities Act” representatives, as well as one of the school’s VA psychologist on staff, and finally my VA primary care doctor’s documentation dating back to 2016 stating how I’ve had to either withdrawal drop 6 semesters of school because of these disabilities preventing me from sustainable academic progress. Therefore, is there ANY WAY I can get I.U. backpay during this time frame as well instead of only up until the date I filed my intent to submit an additional claim and apply for I.U. (again, December 2019)? Is it possible to get it as far back as 2016 or longer since I have such documentation?

2nd Question: For 15 years now I have used my own money that I’ve personally saved up, and I trade stocks online with it. I have yet to “make it big,” nevertheless it’s something that is interesting to me and I enjoy doing it. It’s like an adult-version of a video game to me because there’s a screen, emotion, reward, and loss. Some years have been great and I have made money *(most being $60,000 in one year), and still other years I have lost a lot *($120,000 was my worst year). My question: Individual unemployability has an “income threshold” of what’s called “the poverty line,” which is $12,200 annually. IF you EARN MORE than that threshold and your METHOD OF INCOME is NOT deemed “MARGINAL” (doing a type of work that, TO THE VA, is classified as “ok to do and pass the income threshold of ‘poverty’ because it provides concessions for your disabilities when needed), then you will be FLAGGED for earning an amount of income MORE than “poverty level,” again being over $12,200 and doing so by means of a type of employment, work, METHOD which the VA does NOT CONSIDER “marginal.” Ok…MY QUESTION (which NO VA REP is yet to give me guidance on): Is my affinity for using my OWN PERSONAL MONEY to buy and sell stocks, BOTH short-term (buying and holding a stock for less than a year) and/OR LONG term (buying and holding a stock for more than a year) considered “marginal,” YES or NO? And if I were to make over $12,200 (again, the poverty threshold), will this jeopardize my put my I.U. status with the VA in any shape/way or form at all, YES or NO? And WHAT is the REGULATION which governs this law?? Simple question, NO VA representative knows, and furthermore the internet is FILLED with people saying both “yes” as well as “no.” I make MAYBE 2-3 trades per week usually, by the way. I’d like to get more involved with it, however, because like I said: it’s enjoyable and it’s fun. Some that work at the VA say “yes, that will red flag you since it is income,” Others who also work at the VA say “no, it won’t be a problem since it doesn’t come from being employed,” while both sets of people work at the VA, none of them have a REGULATION BOOK by which they get this information from to refer me to. They say “it DOESN’T EXIST” and that “it’s COMPLETELY UP TO THE PERSON WHO REVIEWS YOU AND HOW THEY “FEEL.” … Seriously? The status of my VA Individual Unemployability is determined by someone’s FEELINGS that day!!? No OVERSIGHT? By the way, the VA website has NOTHING to say about this! Personal income gained from the trading of stocks thus and achieving a capital gain by doing so IS NOT mentioned as being something that can or cannot count against a veteran awarded with I.U. come audit time. NOT EVEN MENTIONED. WHAT AM I SUPPOSED TO DO? I’ve traded stocks for many years and I enjoy it. Sometimes I make money doing it, sometimes I lose money doing it… each year is different. Either way, I do not want such a risky, unstable way to gain some money to sabotage my well-deserved Individual Unemployability award given to me from the VA. But the problem is the VA representatives are of ZERO HELP in answering this question, as I’ve asked it REPEATEDLY…and to put it simply, nobody knows. Again, having the ability to click a button on a computer mouse because you recognize a pattern is like watching a football game and betting that the next play is going to be a pass play and not a run play because the offensive formation is a shotgun formation. Trading stocks is a lot like that. Sometimes you’re wrong about the play call. But ANY WAY YOU SLICE IT it is VERY DIFFERENT than being GAINFULLY EMPLOYED for 8-10 hours/day doing something productive and meaningful, and if “clicking a computer button” at the right time causes me to have a profit, call it “income,” and then if I get lucky and exceed the $12,200 annual poverty level, then I NEED TO KNOW whether or not this will in ANY WAY/SHAPE or FORM threaten my “totally disabled, permanent in nature, individual unemployability-awarded status with the VA!   I need to have the regulation as well as in writing, because ALL I’ve been getting from the VA is the basic stuff that anyone with 1/2 a brain can get from a simple VA I.U. Google search such as “you can go beyond poverty level if it’s considered ‘marginal employment,'” etc. But when I tell them that I trade MY money FOR myself, they have nothing to go off of to answer me. This is unacceptable, as I am simply trying to get a VERY SIMPLE yes-or-no answer to a VERY SIMPLE and SPECIFIC question about a certain type of income and whether or not it will affect my I.U. status or not, and instead of the VA representatives caring enough to FIND OUT, they lazily regurgitate the same ambiguous/vague junk from the VA website that doesn’t address my specific issue at all much less attempt anything more than 1/100th of the work I’ve WASTED trying to uncover the answer to this seemingly simple question in an attempt to not cause myself problems in the future with the VA. Please assist, and thank you in advance,

Jim's Reply:

1. I received I.U. back-pay dating back to the date of my INTENT to file for this increase, which was December of 2019. My question is this: Is it at all a possibility to receive more back-pay than what my “intent to file” date is? Therefore, is there ANY WAY I can get I.U. backpay during this timeframe as well instead of only up until the date I filed my intent to submit an additional claim

Answer; The date that a veteran files a claim is the effective date of that claim. The filing of the Intent To File A Claim form establishes the effective date. That is well established law and there is no way around it no matter how much angst you may feel personally. If you don't like the law, write your Congressional representative and have it changed.

https://www.law.cornell.edu/uscode/text/38/5110  

2. Is my affinity for using my OWN PERSONAL MONEY to buy and sell stocks, BOTH short-term (buying and holding a stock for less than a year) and/OR LONG term (buying and holding a stock for more than a year) considered “marginal,” YES or NO?

Answer; There is no yes or no answer as you are trying to force from others and that's why you aren't hearing what would make you happy. The answer is always maybe and will depend on any number of moving variables that will be in effect at the moment of review. Income is reviewed yearly by looking at your SSA and IRS records. "Yearly" reviews may occur long after the year in review has passed...nothing unusual here.

https://www.law.cornell.edu/uscode/text/38/5317 

If we assume that you are incorporated as a business and you're paying taxes on your income as you should and we look at your personal income derived from earnings from your business each year, then we can see if you meet the definition of marginal employment for that year. If you are not incorporated as a business entity and you aren't properly paying taxes on income you derive from your 'affinity', then you have other problems. Pretending that an effort (work) that earns you an income great or small isn't being employed won't hold water with the IRS or VA. Trading in the stock market is well recognized as employment if that is a primary source of income for you and VA will see your tax structure...this isn't an "affinity". If you don't believe me, ask the IRS yourself...they'll be happy to discuss what you should be paying taxes on.

Nice try but the VA has seen this gambit before. You're playing fast and loose with definitions and that's a losing game.

No matter what you would like to call your income earning business ('affinity' is weak, 'hobby' maybe?) that earns you income whether or not you earn and pay taxes on enough money each year is the issue. In a year if you earn more than what is defined as marginal employment, you put the IU rating on the radar for review.

https://www.law.cornell.edu/cfr/text/38/4.16

This isn't as complex as you're making it sound and using ALL CAPS isn't helping your credibility.