Adrianaj

I applied for TDUI back in May of this year and yesterday my claim was completed. They granted me 100% P&T and I must admit I didn't see this one coming. Keep fighting the fight and never give up because we never know what might happen. I wish everyone luck with their current situation.

INDEED!
It is certainly a CUE and/or 38 CFR 3.156 error.

"I filed for compensation for my lower back condition back in 2009"


Was the NSC rating at 10% then?

"I went to my hearing in April of this year and was approved for service connection at 10%."

Was this based on a recent C & P or on the older denial that might have had the 10% NSC rating?

I agree that this might be a Fenderson matter ( staged ratings) because most disabilities sure don't get better in time , they get worse.

You have some choices:
1. Ask for extraschedular IU.
2. Seek an increase for migraines or new service connection for another condition(s) first.

Most people who actually get IU get it by number 2.

Even with these, to get IU, you are likely going to need a doctor to say something very close to "the veterans service connected xxx condiitions render him (her) unable to maintian substantial gainful employement."

How much did you earn in the most recent 12 months? Was it "substantial", that is, more than about 12,000 dollars?
If you did earn more than 12k, then it makes it look like you could/should get a different job. However, if your recent job was "marginal employment", and did not produce 12,000 in a years time, then it would be more likely. An exception: You were working, but something radical happened, so now you cant work anymore. (Something like you had a car wreck, or other injury..but, remember, your inability to maintain SGE needs to be for SC conditions to get compensated by va for that)

In other words poeple who really can not work, probably did not earn more than 12,000 in the past 12 months from working. If you did, then it looks like maybe you could simply get another job.

However, this is a medical determination, that is, if your service connected conditions preclude your from working, that your doctor makes.

What most people who suffer from chronic pain don’t think about or is willing to admit is that they most likely suffer from some form of depression/anxiety. You may want to check with your doctor to have him/her refer you to mental health for depression/anxiety due to your service connected migraine headaches and back spinal arthritis and if they treat you, you can also file a claim for depression/anxiety caused by or as a result of your already service connected migraines and back spinal arthritis. Get it documented in your VAMC records and go from there.

This is another way to raise your combine rating percentage.

Hope this helps.

Pete

This vet already has the maximum rating for migraines.

An extraschedular consideration would have to be based on an exceptional disability situation.

Adrianaj ,what is the additional 10% for,has that SC gotten worse since getting the 10% , and does that disability impact on your ability to work?

There are many claims at the BVA for migraines and TDIU. and Many denials.This one contains the way these are determined:

"In addition, the 50 percent schedular rating assigned for
migraine headaches is the highest rating provided by the VA
Schedule for Rating Disabilities for that disorder.

Therefore, a higher rating may only be granted on an
extraschedular basis under 38 C.F.R. § 3.321(b)(1) or, if the
evidence showed the veteran to be unemployable based on his
service-connected migraine headaches alone, an extraschedular
TDIU rating could be awarded under the provisions of
38 C.F.R. § 4.16(b). However, as noted above, the Board does
not have the authority to grant such a rating because the
terms of the regulations themselves vest that authority in a
particular VA official. "

The BVA means that these claims must go to VACO, as within the remand:

"1. The RO should wait to receive a
reply from the Director, Compensation
and Pension Service, to its April 2005
Memorandum and then inform the veteran
of the decision on his claims for
extraschedular ratings for migraine
headaches and for a total rating based
on individual unemployability prior to
November 26, 2003."

http://www.va.gov/vetapp05/files5/0530955.txt

Nothing is impossible however, I recall here years ago a case of a vet with a foot condition , rated very low, but he was awarded TDIU under Extraschedular because his disability presented an 'exceptional' disabling picture.....

his service connected foot condition caused his feet to smell so bad that he was unemployable.