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....

[Wings]

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.

x

x

x

Teac, You're hard work deserves a reasonable doubt, but I have not yet read or seen the claim that thas put forth the argument that TDIU "stands alone" as a separate 100% rating. I do not want to be curt, but I think once the VA assigns 100% schedular, the TDIU becomes "moot".

Let me think about this some more and get back to you. It helps the search, if I know what search terms to use, typically I start with the Statute .. in this case, you are primary concerned with 38 CFR 3.351 and USC 1114 and additional 100% ratings --and even "earlier effective date" for SMC awards? Have you thought about an earlier effective date? ~Wings

Edited March 17, 2012 by Wings

[Teac]

x

x

x

Teac, You're hard work deserves a reasonable doubt, but I have not yet read or seen the claim that thas put forth the argument that TDIU "stands alone" as a separate 100% rating. I do not want to be curt, but I think once the VA assigns 100% schedular, the TDIU becomes "moot".

Let me think about this some more and get back to you. It helps the search, if I know what search terms to use, typically I start with the Statute .. in this case, you are primary concerned with 38 CFR 3.351 and USC 1114 and additional 100% ratings --and even "earlier effective date" for SMC awards? Have you thought about an earlier effective date? ~Wings

Wings,

Go back and read bradley v Peake... had it not been for bradley v peake the idea of TDIu being a Total rating equal to 100% would have never dawned on me.... It was actually Bradley V peake this states that TDIU is not a moot issue for SMC purposes.....

[Wings]

Wings,

Go back and read bradley v Peake... had it not been for bradley v peake the idea of TDIu being a Total rating equal to 100% would have never dawned on me.... It was actually Bradley V peake this states that TDIU is not a moot issue for SMC purposes.....

Teac, I'll read it again. I always thought that once a vet is rated 100% schedular, the TDIU was moot (dismissed, not relevent, dropped). You still haven't told me the statute or law that would permit the award you are seeking, I can only guess --and will read Bradly again. In the meantime, I hope that others will help you because your quuestion has me confused. Sorry. ~Wings

[Philip Rogers]

Teac - maybe the TDIU issue needs to go to the Court, just like the 1114(s) 100+60 SMC award issue!!! To the best of my knowledge, I read some yrs back that once a claimant is 100%, the issue of TDIU is no longer an issue because they pay the same and there would no additional benefit w/TDIU. I don't recall whether it was a court decision or a BVA decision. It kinda made sense, at that time, but this was definitely before Peake. The problem that I found was that, in some states, TDIU brings more benefits, to the TDIU vets.

pr

Wings,

Go back and read bradley v Peake... had it not been for bradley v peake the idea of TDIu being a Total rating equal to 100% would have never dawned on me.... It was actually Bradley V peake this states that TDIU is not a moot issue for SMC purposes.....

[cooter]

Teac...I pretty sure know what your getting at and it sounds reasonably correct. BUT, the one thing I was wondering about is; When VA mooted your 60% TDIU with 100% Schedular, did they at the same time bring the prior TDIU BACK to 60% instead of keeping you with 2 100% disabilities?

Coot

[Teac]

Teac...I pretty sure know what your getting at and it sounds reasonably correct. BUT, the one thing I was wondering about is; When VA mooted your 60% TDIU with 100% Schedular, did they at the same time bring the prior TDIU BACK to 60% instead of keeping you with 2 100% disabilities?

Coot

The revoked the TDIU but left the 60% rating in place.