tdiu changing a extra Scheduler rating to Scheduler?

[Buck52]

IF a Veteran is on a combined extra scheduler rating say  90%combined rating..VA  Awards him the Extra Schedular Rating for TDIU P&T  Because the veteran can no longer work...and is being paid at the 100%rate

ok now the veteran has filed another claim an was awarded 70% on that claim.

which made him eligible  for and met the criteria  for the SMC S 1 H.B.

VA  inferred that.

But on VA Benefits letter he is still considered IU...But his rating was moved up to the scheduler 100% rating says he is 100% rating  has the blue circle with the 100% # in it.

How would the veteran request drop the IU Now because he is considered  being 100% scheduler according to the VA Benefits letter in Ebenny's.

And been awarded the SMC S 1

............Buck

[jfrei]

This happened to me actually I walked into my regional off in Delaware and wrote my complaint down the Secretary walked to the regional director office the director came out and said it was an issue the rater missed it it will be fixed thus giving my kids Champva and DEA benefits 

[namvet6567]

Why would he/she/them/they want TDIU removed?  I believe it's harder to reduce TDIU, as they need to prove the ability to work.  If memory serves me correctly, isn't extra-schedular only awarded by the central office or has that changed?

[Dustoff1970]

In recent years I was upgraded from P&T TDIU (awarded in 1998) to 100% P&T scheduler with SMC-S and no longer is any mention of TDIU in my VA award letters.  I did not request or need to request VA drop TDIU as it is now a moot issue.  No worries as the 98 TDIU award was based upon a single 70% PTSD rating and neither can be terminated or reduced after 26 years unless Congress changes the law.  So my 100% pay is safe until I go  visit the angels in heaven.  

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

 

[Lemuel]

I thought extra-schedular is the way Bronco states.  TDIU has a presumptive like PAC ACT disabilities.  TDIU is 60% for one disability or 70% combined ratings.  So, 70% is schedular TDIU.  What is extra-schedular is my grant of TDIU for my TBI when I was only rated at 40% combined for 9304 TBI (traumatic brain disease) and hearing loss.  I received schedular TDIU first from 2009 in 2017 by the BVA when TDIU was granted based upon the Presumptive 70% combined after adding 40% TBI to a changed nomenclature of 9304 at 30%.  

My TDIU was then granted with an EED back to September of 1985 based upon an unprocessed extra-schedular claim for TDIU in November of 1987 based upon the BVA Judge referring it in remand to the Director, Compensation Services via the AOJ.  (nearly a 2 year EED from the claim date)

From that experience, I believe anyone who could not hold a full-time job because of their service-connected disabilities, by their record, could possibly obtain an EED for TDIU back to their last date of full-time employment by submitting an extra-schedular claim even if their ratings did not meet the "presumptive requirement".

Edited February 1 by Lemuel
correct error

[Tbird]

Quote

38 CFR 4.16

4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: 

(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, 

(2) disabilities resulting from common etiology or a single accident, 

(3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, 

(4) multiple injuries incurred in action, or 

(5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 

(Authority: 38 U.S.C. 501)

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996; 79 FR 2100, Jan. 13, 2014]

[Dustoff1970]

In the old days an inferred TDIU claim was determined by the VA raters if they saw evidence of unemployability due to a vets service connected condition/s in the medical records and the VA was suppose to send the TDIU application form to the vet so he could then file a claim for TDIU and submit his/hers other supporting medical and other evidence to support his/hers TDIU claim. 

Both then and now a vet has to actually apply for the TDIU claim by actually filling out the TDIU claim form and sending it in with evidence.  The VA will not automatically grant TDIU unless the vet applies for it as I did successfully in 1998 after the VA sent me the form to be completed.  To me it is a very simple and straight forward procedure.

Of course one can be proactive and apply for TDIU by downloading the form from VA website and completing and sending it in to VARO raters.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

 

Edited February 1 by Dustoff1970