hypertension Appeal After 100% Tdiu P&t

[Snake Eyes]

I piggy-backed my diabetes & complications claim on a TDIU claim I filed back in June. The VA awarded the TDIU -- P&T and gave a zero rating for hypertension (reopened) and denied the diabetes contentions.

My VSO said I should accept the TDIU and not bother with contesting the claim for diabetes as there is no additional compensation likely. I had considered filing a NOD because I would want my family protected if I died of diabetes complications.

Is the VSO's guidance appropriate in a case like this? How likely is it the VA would undo its decision for TDIU if I appealed the diabetes part of the claim?

[broncovet]

I think that both have a valid point. On one hand do you really want to appeal when you are unlikely to get any additional compensation? On the other hand, if you do die from diabetes complications, then your family may be eligible for benefits.

None of this should matter if you die 10 years or more from now, because, the cause of death does not matter as long as you have been service connected for 10 years as far as widows (DIC) benefits are concerned.

https://www.law.cornell.edu/cfr/text/38/3.22

§ 3.22 DIC benefits for survivors of certain veterans rated totally disabled at time of death.

(a) Even though a veteran died of non-service-connected causes, VA will pay death benefits to the surviving spouse or children in the same manner as if the veteran's death were service-connected, if:

(1) The veteran's death was not the result of his or her own willful misconduct, and

(2) At the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was:

(i) Rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death;

(ii) Rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death; or

(iii) Rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the veteran was a former prisoner of war.

(Authority: 38 U.S.C. 1318(b))

(b) For purposes of this section, “entitled to receive” means that the veteran filed a claim for disability compensation during his or her lifetime and one of the following circumstances is satisfied:

(1) The veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or

(2) Additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156© and 3.400(q)(2) of this part for the relevant period specified in paragraph (a)(2) of this section; or

(3) At the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified in paragraph (a)(2), but was not receiving compensation because:

(i) VA was paying the compensation to the veteran's dependents;

(ii) VA was withholding the compensation under authority of 38 U.S.C. 5314 to offset an indebtedness of the veteran;

(iii) The veteran had not waived retired or retirement pay in order to receive compensation;

(iv) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2);

(v) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or

(vi) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits were payable under 38 U.S.C. 5309.

© For purposes of this section, “rated by VA as totally disabling” includes total disability ratings based on unemployability (§ 4.16 of this chapter).

(d) To be entitled to benefits under this section, a surviving spouse must have been married to the veteran—

(1) For at least 1 year immediately preceding the date of the veteran's death; or

(2) For any period of time if a child was born of the marriage, or was born to them before the marriage.

(Authority: 38 U.S.C. 1318)

Edited April 20, 2015 by broncovet

[marine0816]

100 pt. you won already. Next milestone is the 10 year status

Edited April 20, 2015 by marine0816

[Gastone]

Snake: Welcome to the IU T&P Club. Forget about 35 and start thinking 31, check it out. As for dropping your denied claims, WTF, things change with the IOM every few years. Why have to start all over again? Are future Exams scheduled? After 55 the VA isn't supposed to screw with you unless good cause. 20 years of holding a rating make it protected, don't count on 10 years doing much.

You need to review a post by AskNod (Obeone Kanobe of VA Regs) regarding SMC-S when you're rated as IU. I don't want his head to explode, but this is probably one of the best explanations regarding the mystery of the SMC's and IU as opposed to 100% Schedular.

Semper Fi

Gastone