Yuku free message boards

Condo,

"substantially gainful employment" could possibly be changed to "substantial gainful activity" which is what Social Security uses. I got no problem with either one since they are similar in what they do. One of the SS experts could clarify the difference between the two.

The next meeting I understand will talk a bit about presumptive service connection. That will be one of the big boys along with "in the line of duty" injuries/diseases.

Substantial gainful activity according to SS:

"(A) Inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which lasted or can be expected to last for a continuous period of not less than 12 months;

(2) For purposes of paragraph (1)(A) --

(A) An individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), " work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country."



Back to SGE. It appears VA needs to work this any way since the COVA has been on them for a while to clean up the wording. Though this is an older statement from the COVA I suspect it is where it is all heading.

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"The Court has previously commented that the regulations dealing with unemployability compensation are "confusing" and seemingly contradictory. Hatlestad v. Derwinski, U.S. Vet. App. No. 90-103, slip op. at 6 (Mar. 6, 1991). The Secretary's explanation does little to allay the Court's confusion:

. . .

As the Court indicated in Ferraro, slip op. at 11, there is a need for the Secretary to clarify the regulations concerning unemployability. Though we are not yet prepared to impose a Court created rule upon the BVA, we would suggest to the Secretary that there is much that could be borrowed from the decisions of the United States Circuit Courts of Appeals which have considered the question of whether a social security disability claimant is able to engage in "substantial gainful activity". 42 U.S.C.  416(i)(1) (1988 ); 20 C.F.R. 404.1520, 416.920 (1990). We point out in particular the standard announced by the Eighth circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant."

webisys.vetapp.gov/isysquery/irl2c5d/9/doc