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As for as this veteran being rated 100% w/P&T the other ratings will not lean in toward the SMC RATING AT THE 30% %50%....if he had got a 100% rating for the Sleep Apnea then that would certainly change things and he would meet the SMC Criteria. To meet the SMC Criteria the veteran must have a single S.C. Single & separate distinct disability rated 60% or better.
This is a little long to read but may shed some light.
The benefits that are available for a dependent of a 100% schedular disabled veteran and a 100% TDIU disabled veteran are exactly the same. The confusion comes from the fact that it isn't the rating of schedular v. TDIU but permanent v temporary assignments of the benefits.
Any 100% rated veteran get's the same money and basic benefits. The TDIU rating is simply a recognition by VA that the Schedule For Rating Disabilities (the Schedule) often falls short. The Schedule is where we get the term "schedular" as it applies to a rating. Because of the Combined Ratings Table (CRT or "VA math") some ratings won't make it to 100% by the schedule. Yet those veterans won't be able to hold gainful employment because of their multiple service connected disabilities.
The TDIU ratings process recognizes that and compensates for it by recognizing that there are many vets who are unemployable because of service connected disabilities. In the end, the 100% rating of a TDIU veteran is exactly the same as a veteran who is rated 100% by the schedule.
But wait...it isn't precisely the same...typical of VA. The veteran who is rated 100% by the Schedule is allowed to work. Many veterans who are rated as 100% schedular are working and earning good salaries. The TDIU rated vet isn't allowed to hold gainful employment because his 100% rating is contingent upon his inability to hold gainful employment.
The real confusion starts when we determine whether or not the 100% rating, whether schedular or TDIU, is a permanent rating or a temporary rating. Any rating awarded by VA may be assigned as being temporary or permanent.
A temporary rating is awarded when VA has reason to believe that there will be improvement in the rated condition. Many temporary 100% ratings are awarded for hospital stays, mental health ratings and treatments for conditions such as a service connected cancer. There is a significant body of evidence that says that many of these conditions will improve with treatment.
A permanent rating is awarded when it is readily apparent that the chances of improvement of the condition are slim to none.
Whether or not dependents of a 100% rated veteran are eligible for the enhanced benefits of DIC, CHAMPVA and Chapter 35 DEA are based in the permanence of the award. not the label of schedular or TDIU. Permanence is usually referred to as P & T.
So...the rules are the same across the board. If a veteran dies of a service connected condition, under any circumstances and regardless of the overall rating, the dependent survivors are eligible for DIC.
If you are rated 100% P & T (either schedular or TDIU) and you die within 10 years of the assignment of the rating, your death must be caused or contributed to by a service connected condition. If, within that 10 year period, you get run over by a fast moving bus, your survivors will not be eligible for any benefits.
Once you have held a P & T 100% rating for 10 years, you may feel free to step in front of that bus and your dependent survivors will be eligible to apply for the enhanced benefits.
If the 100% rating is temporary and even if you hold it for years, those benefits won't be there unless you die of a service connected condition. This is one reason that investigating secondary conditions is important. For example, if you have diabetes as a service connected rating, you are more likely to die of a heart attack or a stroke. If you are rated at 20% for the DMII and your demise is caused by a sudden unexpected heart attack, your surviving spouse is probably eligible for DIC benefits. But she'll have to know that and ask for it. source :'' Jim Strickland National Known VA Advocate ''
" Also told me there is no such thing as a reconsideration "-yeah, I even had to enlight a well known vet lawyer about that. Even BVA decisions can be reconsidered under certain BVA rules. There are a few members here to include me who have filed and won Reconsideration requests. I just wrote them a letter but I dont know if there is a form to use.Forms are found at the VA main site or here under a search. Broncovet added the M21-1 MR info on Reconsideration Requests: http://community.hadit.com/topic/65759-reconsideration/ This might weigh the scales to Benefit of Doubt: (I say Might weigh the scales equally but don't forget who owns that BOD scale. "But it appears that it is as likely as not, that your long history of solvent exposure may have contributed to this diagnosis." But it needs a full medical rationale and referral to your inservice STrs, MOS and inservice nexus.
Got a veteran who is 100% P&T IU, and he was told by his rep he just won 50% for sleep apnea, and 30% for sinusitis. Neither of which are associated with or included in his IU. Will the veteran automatically be changed to scheduler, or does he have to ask for it? I don't have any other details but what I've posted here. Allan 2-2-0 HUAH!
The DAV rep was trained in that like I was.Or he can go to the BVA web site or search here and find out how to do it. I think this is Swarthy's BVA decision: https://www.va.gov/vetapp14/files2/1417506.txt In Part: CONCLUSIONS OF LAW 1. The September 2008 rating decision which denied the Veteran's claim of entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. Evidence received since the September 2008 rating decision in connection with Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). But it doesn't jive with this statement he posted here. "In 2014 the claim for PTSD was granted and rated by the BVA." Swarthy is this it above: Citation Nr: 1417506 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 13-13 450 ) DATE )