tdiu 100% Schedular And Military Retirement Pay

[vaf]

Hi, just wanted to check something. If my husband is 100% schedular, not TDIU, can he receive 100% of his military retirement pay, as well? Right now, he's receiving partial military retirement pay (concurrent receipt). Thanks.

[wallyg]

YES, as soon as the VA notifies DFAS that he is 100% schedular.

DFAS does NOT pay back pay in this area.

[vaf]

We've told the VA several times via their website, and then in writing, that they're computing my husband's overall disability rating incorrectly (he's being paid at 90%, when he's actually at 95% = 100%). I even sent the VARO copies of their own rating decisions, plus two additional awards granted by the Board, but the VA has disregarded this evidence. My husband is retired military, too. This means that not only is he losing $1,000 a month in disability pay, he's also losing $600 a month in retirement pay. We are fighting to get the disability pay corrected and retro'd. If DFAS won't pay retroactively, can we sue the VA for financial losses due to their refusal to correct this problem? If so, how would we proceed?

So far, we think he's lost approximately $3,000 in back pay effective either when the law changed regarding 100% disabled veterans receiving retirement pay in 2005, or November 1, 2005, whichever was earlier. He's losing retro disability pay at $1,000 a month back to October 1, 2003.

My husband's C-file is in Washington, DC awaiting a Court of Veterans Appeals hearing. The VARO continues to tell us they can't do anything on our pending claims because his file isn't there (and by inference, the issue above, since they won't discuss it with us, they just tell us we're wrong without telling us why). It's like no one has ever heard of the technology available like scanners, fax machines, etc.

Even the Appeals Management Center told me the VARO is wrong, but it looks like we'll have to file a Writ of Mandamus just to get the percentage corrected. I'd like to drag someone's collective derrieres into court, even if only small claims court, I think the maximum here is something like $3,500. Has anyone here done anything like that?

I'm doing what I always advise others not to do -- losing my patience, and then I can't think clearly. Please give us the benefit of your wisdom and experience, thanks!

[wallyg]

I think you should contact your local VARO, at the highest possible level, and demand an immediate hearing. When your C-file was sent to Washington, copies of any outstanding matters should have been kept at the VARO, in order to be able to handle just such a situation.

If they will not provide a local hearing ASAP, then go ahead and file a Writ of Mandamus.

Good luck. Don't rely on e-mail, use telephone, and if that doesn't get you a hearing, use Certified Mail, addressed to the Service Center Manager.

[vaf]

Thanks. I've talked to my husband's attorney who is handling the Court hearing, and he said he wants to go ahead a file a Writ of Mandamus, too, which hopefully will do the trick. The VARO hasn't done a thing on my husband's claims in almost two years, using the fact that the C-file is in Washington as an excuse, and has been extremely adversarial. That, on top of the fact that everyone's willing to cut the VARO in Louisiana a lot of slack because of Hurricane Katrina, makes me tend to agree that a Writ is the best bet, I guess. We're already going to file another one regarding a BVA-remanded item that has been pending for five years, with no end in sight. The hurricane has been exploited to cover for the VARO's mistakes and used to stall for additional time.

I'm mostly wanting to find out if we have grounds for a civil lawsuit against the VA in an attempt to have them compensate my husband for any financial losses regarding his military pay due to the VA's negligence.

Also, has anyone ever sued for interest on retroactively paid disability judgements?

[Guest Berta]

Vicki there has been much discussion lately about this on the Veterans Benefits Network:

http://p203.ezboard.com/bvetbenefits under the CRSC topic.

They have been discussing retro and the lack of retro from DFAS as well as the fact that VA has to send them (DFAS)the proof of 100% combat related disability - I guess the veteran cannot send them the award letter themselves.

Maybe, as well as what Walter suggested-

someone there could advise you-some breeze right through CRSC ,but some have problems with the CRSC issue-I am assuming that he applied for Combat Related Special Comp through his branch of service and the VA is holding up the proof? the corrected award?

Someone at the VBN might have had a similiar problem-

Walter is right:

"When your C-file was sent to Washington, copies of any outstanding matters should have been kept at the VARO, in order to be able to handle just such a situation."

[vaf]

Thanks Berta, I'm not giving up.

My husband is a schedular 100%, not directly combat related but all service connected. Inexplicably, the VA has dropped three of his ratings from its radar screen, they're not showing up when they pull his name up. However, I have all the rating decisions in writing. This is some kind of clerical/input/database error, not a subjective issue based on opinion. I was checking www. military.com and found the statement below, am I right in reading this to mean the 100% now doesn't have to be directly combat related, but service-connected?

According to the Defense Finance and Accounting Service (DFAS) Concurrent Receipt is now officially referred to as 'Concurrent Retirement and Disability Pay" (CRDP).

Benefits Update: The National Defense Authorization Act (NDAA) of 2005 eliminated the 9 year phase in for full concurrent receipt payments to eligible retirees rated at 100% disabled by the VA, as of January 1, 2005.

There's no discussion of it having to be combat related special compensation. Am I understanding this correctly?