tdiu TDIU then 100% Scheduler

[TLaff]

Question's

I was turned down for TDIU and talked with DAV and he said get my letter from Social Security stating i can not work and the he would ask for a reconsideration, i did not have SS letter at the time i filed TDIU he said i would 99% be granted TDIU.

However i have appeals in that looks as if i will become 100% scheduler anyway but by reading allot of statements from VET'S getting reduced after several years i think it would be better for me to go ahead and submit the Reconsideration for TDIU because if Social Security states i can not work due to my service connected injuries i doubt the VA would ever try and remove TDIU but with Scheduler if they think one of your 10 connected injuries is getting better they can do a C&P exam on you and you could loose your 100% scheduler 10 or 15 years down the road.

Any Thoughts?

 

TLaff

[Gastone]

How about posting a redacted copy of your IU Denial?

What are your current SC ratings that get you to 90 SC? Was your IU filing based on an "Inferred IU Claim" being listed on your 90% Award?

Going from a Combined SC rating 86 - 89% rounded to 90, to a Scheduler 100% can be a problem.

If you're over 55, VA won't Diary Date Re-exams for Scheduler or IU Ratings. Filing New Secondary Claims would open the claimed Nexus SC for a re-exam, even if you're 68 - 70.

Get a Denial Letter from the VA Vocational Rehabilitation Dept, verifying your "Currently" unable to complete a VR program due to your SC's. Works especially well when you're on a DRO Appeal.

Semper Fi

[TLaff]

IU Denial:

Your claim for IU was denied because evidence does not show you are unable to secure or follow a substantially gainful occupation as a result of service connected disabilities.

My current ratings:

Cervical 40% Ufavorable Ankylosis, Lumbar 40% Rom, MH due to pain 70%, Migraines 30%

I also have appeals in that are 7 and 5 years old which i believe because of the recent C&P exam for the IU shows that my appeals for Radicalopathy for all 4 extremities is present which was denied before and my Migraines warrent a 50% from my recent C&P exam should raise me to 100% scheduler.

I will turn 55 in less than a week.

A guy at the DAV told me to get a copy of the decision from the Social Security Law Judge stating you can  not work or find gainful employment due to my service related injuries and then he would request a RECONSIDERATION in which he believes would get me IU in which i believe they would never ask me for a new exam.

But if i get 100% scheduler they cold always re-exam me and lower my ratings?? I do not care about being able to work through scheduler because i can not.

Your advice greatly appreciated.

 

 

Edited April 23, 2017 by TLaff
misspell

[broncovet]

The VA LOVES it when Vets think, "Gee, if I apply for an increase will VA decrease me instead?"  That fear prevents Vets from applying and getting benefits they deserve.  Remember, 

FEAR =

False Expectations Apperaring Real.  

The VA has specific criteria, and must "go by the book" to reduce you, if you meet that criteria.  The ease with which VA can reduce you, depends on how long you have had your rating, and wheter or not you are P and T.    

There are protections at 5 year (or P and T), 10 years, and 20 years, with the 20 year protections being the best.  

The 5 year proteciton is often overlooked, I have underlined it. below:

3.344 Stabilization of disability evaluations.

(a)Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b)Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c)Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

Edited April 24, 2017 by broncovet

[broncovet]

Please allow me to summarize 3.344, below:

1.  Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction.

2.   Ratings on account of diseases subject to temporary or episodic improvement,  will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.

3.   Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, , will not be reduced on examinations reflecting the results of bed rest.

4. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life  

5.  The Vet gets the benefit of the doubt:  Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect.

     In summary, the VA can not reduce you (P and T, or over 5 years) unless you have "actual improvement" under ordinary conditions of life.  (That is, you go back to work).  They have to show SUSTAINED improvement, and not just "one" exam.  

    Only if you meet the above criteria, can you be reduced.  

 

[Carl the Engineer]

I would go for IU with the new evidence from your SSDI, they can only say no..

If you get everything you wish for with your appeals, then you would be 100% scheduler which outwieghs the IU anyway, P&T not withstanding.

If you don't win your appeals, and you won your IU, you win.  If you don't win your appeals and you don't claim IU, you loose.

Simple,

Hamslice

 

[Buck52]

I 'm not sure on this or what the % is?

but in my opinion as for as VA Trying to reduce veterans benefits the % is much higher for veterans at  the schedule 100%  vs veteran with TDIU P&T

Veterans receiving TDIU is equal to veterans with the 100% schedule rating same pay same benefits if not more with P&T, so in essence a veteran that is TDIU P&T is better off.

Seems  the VA Tends to leave a TDIU P&T Vets alone  providing they send in the 21-4140 every year usually on the veteran award anniversary VS going after a 100% schedule rated Veteran on a proposal to reduce.

It seems in my opinion that getting approved for TDIU the veteran has to prove his evidence and usually a lot of it  in other words its much harder for the veteran to prove he/she is TDIU vs proving to be 100% but the medical records will show those facts on both sides.  just saying

jmo