tdiu 100% Schedular And A Tdiu Rating

[Teac]

Reference General Counsel opinion 6-99 (revoked because of Bradley v peake)

It specifically stated that a request for TDIU from a veteran already rated 100% schedular would not be considered. It goes on to state that there would be no additonal compensation if a veteran held both a 100% rating and a TDIU rating.

It did not address a veteran who was awarded TDIU based on one disability and later was awarded a 100% schedular rating based on a different medical condition.

In my case I held TDIU due to a 60% back injury from May 1999 thru Jan 2007 when I was awarded 100% due to asthma/COPD. The TDIU rating for my back was severed.

Initially, in 2007 I was awarded Housebound due to a 100% rating and a seperate 60% rating. I submitted a NOD that indicated I felt per my doctor letter I should have been awarded A&A. In 2009 A&A was awarded back to Jan 2007. I was awarded A&A at L 1/2 due to a 100% rating and an additonal seperate 50% ( or greater rating). If I understand the SMC schedule correctly in my opinion if I held an additional seperate total rating I would be entitled to a higher level of SMC at the M rate.

Does anyone know of any rule or law in effect that specifically states one cannot hold TDIU under the curcumstances I outlined above. If so please point me to it... as I haven't been able to find it.

Also since General Counsel opinion 6-99 was written Jun 99, and my award for TDIU was dated May 99 shouldn't I have been awarded SMC S since I had an additonal seperate combined 60% + rating.

General Counsel opinion 2-94 dated Feb 2, 1994 which allowed SMC's to those with TDIU plus 60% was still in effect at the time of my may 1999 award.

Any opinions would be appreciated....

[Berta]

"Also since General Counsel opinion 6-99 was written Jun 99, and my award for TDIU was dated May 99 shouldn't I have been awarded SMC S since I had an additonal seperate combined 60% + rating.

General Counsel opinion 2-94 dated Feb 2, 1994 which allowed SMC's to those with TDIU plus 60% was still in effect at the time of my may 1999 award. "

WOW-I just replied to your other post on this issue and need to read that opinion-it was what I was looking for but looking in the wrong place.

If the opinion still stands and has not been reversed or altered (some GC pres ops are such as the tobacco addiction SC issue)

that is great evidence to continue to support your CUE claim with.

[Teac]

"Also since General Counsel opinion 6-99 was written Jun 99, and my award for TDIU was dated May 99 shouldn't I have been awarded SMC S since I had an additonal seperate combined 60% + rating.

General Counsel opinion 2-94 dated Feb 2, 1994 which allowed SMC's to those with TDIU plus 60% was still in effect at the time of my may 1999 award. "

WOW-I just replied to your other post on this issue and need to read that opinion-it was what I was looking for but looking in the wrong place.

If the opinion still stands and has not been reversed or altered (some GC pres ops are such as the tobacco addiction SC issue)

that is great evidence to continue to support your CUE claim with.

General Counsel 2-94,( Feb 1994) is still on the books, it was never revoked. It was the guiding opinion untill General Counsel 6-99 (Nov 99) was generated, of couse Bradley v peake caused 6-99 to be revoked, but as I said 2-94 is still on the books.

I did screw up my dates when I started this thread about my case... I didn't actually have the additional 60% until much later (27 Months) after my award of TDIU. However I think that 2-94 could reinforce many other cases.

Now my more important question still stands, which is...

My TDIU was revoked when I was awarded 100% schedular in Jan 2007. I was also awarded A&A in Jan 2007. VA law allows for increased A&A ratings if the veteran holds additional seperate 50% or 100% awards. In my case because I have an additional seperate 60% award I my A&A was awarded at L 1/2 .

The va held that a veteran could not be compensated for a 100% ratings and seperate TDIU ratings at the same time, so if a veteran is rated 100% schedular a claim for TDIU is moot. However Bradley v peake determined that TDIU can be used to consider eligibility for SMC awards. In fact, Bradley v peake went on to state if a veteran is rated TDIU and eligible for SMC, but later receives a 100% rating that makes him ineligible for theSMC than the veteran must be awarded the TDIU since it is more of an advantage to the veteran.

Since the va held that TDIU can be considered seperate from 100% awards for SMC, would it not hold true for cases like mine where I had a TDIU rating for one issue, and a 100% rating for a seperate issue, that for SMC purposes I have two 100% ratings, and would instead be entitled to A&A at the M level.....

Let me add, the statute also states that additional 50 or 100% was apart from a TDIU rating when considering levels of A&A, but this statute was written before Bradley v Peake was decided. Since bradley v Peake allows for TDIU to be counted as a 100% rating for SMC purposes in awarding Housebound, shouldn't TDIU also be considered a 100% rating when awarding higher steps for Aid and Attndance.

Any thoughts on my last question would be appreciated,......

[Wings]

General Counsel 2-94,( Feb 1994) is still on the books

Teac, I searched for the Prec. Op., but the server was down this morning ...

Since the va held [cite the source, Bradley, VAOIG?] that TDIU can be considered seperate from 100% awards for SMC, would it not hold true for cases like mine where I had a TDIU rating for one issue, and a 100% rating for a seperate issue, that for SMC purposes I have two 100% ratings, and would instead be entitled to A&A at the M level.....

Teac, Are you thinking that because there was a narrow window of time (dates) that you held 100% TDIU, and before you were awarded 100% schedular -that at that point in time you should have been condiered for a higher SMC?

I am really confused about exactly what you are asking ... It would help me to understand if you simply state the nature of your claim. Have you filed the claim yet? ~Wings

[Teac]

Teac, Are you thinking that because there was a narrow window of time (dates) that you held 100% TDIU, and before you were awarded 100% schedular -that at that point in time you should have been condiered for a higher SMC?

I am really confused about exactly what you are asking ... It would help me to understand if you simply state the nature of your claim. Have you filed the claim yet? ~Wings

No that is not what i was thinking..

I am stating that perhaps I should have been able to retain the TDIU regardless of my 100% rating since both ratings are for two seperate medical issues. And I am stating that TDIU could stand as the second 100% award for the purposes of SMC at M, instead of my current level of L 1/2.

Keep in mind that presently I am rated 100% + 50% and I have been awarded SMC L 1/2 . Bradley v peake states TDIU + 60 nets a veteran housebound, then why would TDIU not be counted toward a higher A&A rating when a veteran already qualifies for A&A. Remember, bradley v peake states to rate the veteran at the highest level possible and even allowed for a 100% veteran who could not qualify for HB to be rated as TDIU if the veteran could qualify for HB with the TDIU.

[Wings]

No that is not what i was thinking..

I am stating that perhaps I should have been able to retain the TDIU regardless of my 100% rating since both ratings are for two seperate medical issues. And I am stating that TDIU could stand as the second 100% award for the purposes of SMC at M, instead of my current level of L 1/2.

Keep in mind that presently I am rated 100% + 50% and I have been awarded SMC L 1/2 . Bradley v peake states TDIU + 60 nets a veteran housebound, then why would TDIU not be counted toward a higher A&A rating when a veteran already qualifies for A&A. Remember, bradley v peake states to rate the veteran at the highest level possible and even allowed for a 100% veteran who could not qualify for HB to be rated as TDIU if the veteran could qualify for HB with the TDIU.

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Like I said, it would help if you stated your claim. Your hypothesis is vague, "then why would TDIU not be counted toward a higher A&A rating when a veteran already qualifies for A&A." Period. Question mark. Stop speculating, and assert your claim --and then we can see if it fits. Know what I'm sayin'?

Something like this:

The veteran claims SMC. The veteran believes that he is entitled to a higher SMC award under 38 USC amd 38 CFR ... because 1. 2. 3.

[Teac]

x

x

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Like I said, it would help if you stated your claim. Your hypothesis is vague, "then why would TDIU not be counted toward a higher A&A rating when a veteran already qualifies for A&A." Period. Question mark. Stop speculating, and assert your claim --and then we can see if it fits. Know what I'm sayin'?

Something like this:

The veteran claims SMC. The veteran believes that he is entitled to a higher SMC award under 38 USC amd 38 CFR ... because 1. 2. 3.

Ok, let me try one more time.

But to be sure you get the entire picture I am going to give you the entire background of my situtation and then I am going to once again present a situtation where I think TDIU and a 100% rating should be used for SMC purposes.

1. I was awarded TDIU in 1999 for a 60% Back injury

2. I was awarded 100% in 2007 for asthma/copd, the TDIU was terminated.

3. I was awarded A&A at the L rate in 2007 , however the rules state if a veteran has addition seperate disabilities that combine to 50% or 100% then the award for A&A is increased a half step for a combined 50 or one full step for a combined 100 ..... I was awarded A&A at SMC Step L 1/2. Because I have a seperate 60% rating for my back I was granted A&A at L 1/2.

Bradley v Peake states in part " The COVA held that section 1114(s) does not limit a service connected disability rated as total to only a schedular rating of 100%, it includes a disability that would support the grant of TDIU. ( in English- SMC can be awarded to those with TDIU)

In addition the court held that when a veteran has service connected conditons that combine to a 100% evaluation, if the veteran would be monetarily advantaged by having just one service connected condition that supports a total TDIU rating and the veteran has others service connected conditons when combined are at least 60%, the VA is obligated to rate the case to maximize the benefits that can be paid to the veteran. ( In other words--- A Veterans can have a 100% rating that does not support award of an SMC, however if that same veteran's conditons could support TDIu based on one condition and the veteran has a seperate 60% rating, the va will toss out the 100% award to maximize the veterans compensation) So based on Bradley v Peake TDIU must be considered for purposed of SMC even where a veteran is rated 100%.

Now comes the question.

1. Since TDIU can be used to support a Housebound award even when a veteran is rated 100%. then why can't TDIU be used to support an additonal step for an A&A rating.

2. The arguement I am trying to put forth is simple;

A. I am rated 100 for Lungs

B. I would be rated TDIU for 60% back injury if not for my 100% rating.

C. seperate combined 50% ratings requires a half step increase and 100% ratings require a step increase in A&A compenstion levels

D I now receive A&A at L 1/2 based on the 60% back injury

E. I submit that in my case, TDIU should count as a 100% rating for an additonal SMC step to M.

3. In my case I held TDIU from May 1999 thru Jan 2007. The rules state if a veteran is rated 100% a claim for TDIU is moot and will not be considered, however in my case I was totally disabled via a TDIU rating for my back injury almost 7 years before I was rated 100% for my lungs. So what I am saying is the va sholuld not be able to ignore that in reality I have two conditions that are totally disabling, One condition that required TDIU, another conditon that required a 100% rating. ( yes both times I was granted T/P)

So to furthur the arguement I think for purposes of SMC my ratings should be as follows:

100% asthma/COPD

TDIU 60% back injury

30% eyes

10% Knee lateral instability

10% Knee limitation of motion

10% Sinusitis

10% allergic rhinitis

10% tinnitis

10% internal hemorroid

K award loss of use of left foot

0% hearing

0% eppidmittis

100% stands by itself and , TDIU( back injury) if counted as an additional total rating increases my SMC one step from step L to step M. All my other ratings combine to 62.79 would increase SMC from step M to Step M 1/2.

Of course I could put forth JB's arguement that once a veteran reaches 100%, additional ratings are added using simple VA math not combined. Under either arguement I would receive the additonal steps in SMC. ( Using JB's arguement it might even increase my smc step greater)

Hope that you can understand my hypothesis now......I have not initated any claims based on this. I am just putting forth a situtation where I think I and others might benefit if TDIU were not tossed out because of a post 100% rating.

Edited March 16, 2012 by Teac