tdiu Does 100% P&T Rating = TDIU

[Big Country]

Crazy Question:  If you are 100% Permanent and Total, are you then TDIU?  

[HorizontalMike]

My TBI rating was recently increased from 40% to 70% AND I was granted 100% TDIU (Dec 2015).  Still waiting on my lawyer to appeal retro-dates and to finalize the P&T portion of TDIU.  I am 63 YO.

I was also awarded "Dependents Educational Assistance" (under title 38, United States Code, Chapter 35).  According to VA testimony on TDIU (http://www.va.gov/OCA/testimony/svac/05102720.asp :  "...To be eligible for both of these benefits, the veteran’s IU determination must be considered permanent.  Permanency for eligibility to Chapter 35 and CHAMPVA requires that there not be a future examination scheduled..."  Thus far I have only received a "Summary of Case", but am STILL waiting on the formal "Rating Letter".  A small retro check has already been deposited in my account, so this is moving forward but not finalized.

The way my attorney explains 100% P&T TDIU, once you have THAT, do NOT rock the boat!  In other words, DO NOT give the VA any opportunity to reopen your file, ever!

MY QUESTION:  I am still a bit confused regarding what my attorney explains and what I have found on another website RE 100% TDIU.  Am I STILL AT RISK OF LOSING MY TDIU?  FWIW, looks like the VA is going to deny my MD and OSA as NOT SC.  Don't know if that is a bad thing or just a distraction...

 

From my attorney, RE my claims appeal:

"... If there is a disconnect from what I was explaining and how you were understanding then I am happy to clarify but I stand by what I said because I have witnessed it first hand in cases I have personally handled. When a veteran is deemed P&T there is a determination that he/she will not be scheduled for any future exams and the claim will not be reviewed. Mr. xxxxx is most likely referring to veterans without that particular finding. Second, I agree that a schedular 100% rating is the better benefit when compared to IU but what you are missing is that just because you are at a schedular 100% does not mean you are automatically P&T. Being 100% schedular is not a one way street. Without the P&T finding, a 100% schedular rating is just a rating that is subject to future exams and decreases like any other rating. If they decreased your TBI rating there goes your 100% schedular rating. So when you assert that TDIU is not enough without “specific protections” you are not making sense. You are not granted TDIU if you are schedular 100%. If you are schedular 100% then you are still subject to future exams and decreases because there are no “protections” involved. The only way to avoid future exams and future reductions is with a P&T finding and that applies to IU or schedular 100%. Adding additional claims to get you to 100% does nothing unless you are P&T..."

 

HOWEVER, I found the following on another website RE the P&T Rating:

https://www.vawatchdog.org/permanent-and-total---p---t-.html

What is a Permanent & Total rating?

"...In the language of your VA, the word permanent does not mean that your benefit is permanent! To have a 100% P & T rating only implies that your dependents are eligible for benefits like DEA & CHAMPVA.  Your rating is NOT protected! There is but one way to achieve a "protected" rating...you must hold it uninterrupted for 20 years. Until you've held the rating for 20 years VA may contact you at any time to evaluate (and lower) your rating.

How do you know if your rating is temporary or permanent? You go to your original award letter and look for the secret codes VA likes to use to confuse you. If your award letter says "No future exams are scheduled..." that means that your rating is permanent. If you see "Eligibility to dependents Chapter 35 DEA / CHAMPVA are established", your rating is permanent.  Those phrases may differ from one VA Regional Office (VARO) to the next but there should be something similar on your award letter.

If you see "Future exams are scheduled" or similar, or no reference at all to future exams or other dependents benefits, your award is probably temporary.  VA establishes the rating as permanent when there is little chance that the condition will improve. VA makes a lot of mistakes when establishing the permanence of a rating. It's up to you to know what to do...nobody will do this for you.

As a rule, most mental health conditions and cancers will be temporary ratings.  A veteran must hold a 100% permanent rating for 10 years, uninterrupted, for his/her family to be eligible to apply for DIC benefits should the veteran die of anything other than a service connected condition..."

Edited December 21, 2015 by HorizontalMike

[Vync]

 

MY QUESTION:  I am still a bit confused regarding what my attorney explains and what I have found on another website RE 100% TDIU.  Am I STILL AT RISK OF LOSING MY TDIU?  FWIW, looks like the VA is going to deny my MD and OSA as NOT SC.  Don't know if that is a bad thing or just a distraction...

Even though a rating says "Totally Disabled" or "Permanent and Total", they do not necessarily mean either in every situation.

However, because you are 63, you are not likely to be re-examined due to the age rule. I recommend you don't give up on your MD and OSA.

I hear the "don't rock the" boat advice a lot, but depending on your circumstances, there could be some really legitimate reasons to file additional claims in the future whether you are TDIU or P&T. These can include SMC (this is a big one), car or home accessibility grants, secondary conditions to help your spouse for DIC purposes, etc...

Below is a brief summary about various types of protection, but there is a lot more to each regulation. You can look up more details of each in the actual CFR documents, but I don't have the ability to paste in the links at this time.

38 CFR § 3.327: Age Rule
Periodic reexamination will not be scheduled in cases of veterans over 55 years of age, except under unusual circumstances.

38 CFR 3.344: 5 Year Rating Protection
Ratings percentages in effect 5+ years or longer cannot be reduced unless the condition has improved on a sustained basis or due to fraud. All evidence, not just a single reexamination report, must prove improvement was not just temporary.

38 CFR 3.957: 10 Year Service Connection Protection
For disabilities SC for 10+ years, SC status is protected, except in cases of fraud.

38 CFR 3.951: 20 Year Rating Protection
Rating percentages in effect 20+ years cannot be reduced except for fraud.

 

I hope this helps!

 

[Guest]

The crazy one here, Scare Tactics. The Big Issue is that OSA is a life threatening condition/disorder.  If a veteran pass away due to a non-service connected condition then his/her family would not be eligible for DIC or any other benefits.  Yes a veteran can continue filing claims to get SMC payments but the real deal is to make sure any life threatening condition is service connected.  Just like when you would say that you wanted out of the military you would hear that there are no jobs out there and it was/is better to stay in.  If you are granted TDIU, VA can re-evaluate you.  If you are granted TDIU  P & T, VA is not likely to re-evaluate you.  Same as if you are granted 100% scheduler, VA can re-evaluate you and if you are granted 100% P & T VA is not likely to re-evaluate you. It all depends on what is going on with you and your finances.  If you are granted TDIU or TDIU P & T, you cannot legally work.  If you are granted 100% scheduler or 100% scheduler P & T as long as it is not for a sole reason for a mental health condition then you can legally work but if that sole 100% scheduler or 100% scheduler P & T rating is due to a sole mental health disorder and you continue to work you run the risk of being re-evaluated and being reduced.

 

If you are rated 100% TDIU or Scheduler P & T or not then you should file for SSDI (Social Security Disability Insurance).

 

[HorizontalMike]

The crazy one here, Scare Tactics. The Big Issue is that OSA is a life threatening condition/disorder.  If a veteran pass away due to a non-service connected condition then his/her family would not be eligible for DIC or any other benefits.  Yes a veteran can continue filing claims to get SMC payments but the real deal is to make sure any life threatening condition is service connected.  Just like when you would say that you wanted out of the military you would hear that there are no jobs out there and it was/is better to stay in.  If you are granted TDIU, VA can re-evaluate you.  If you are granted TDIU  P & T, VA is not likely to re-evaluate you.  Same as if you are granted 100% scheduler, VA can re-evaluate you and if you are granted 100% P & T VA is not likely to re-evaluate you. It all depends on what is going on with you and your finances.  If you are granted TDIU or TDIU P & T, you cannot legally work.  If you are granted 100% scheduler or 100% scheduler P & T as long as it is not for a sole reason for a mental health condition then you can legally work but if that sole 100% scheduler or 100% scheduler P & T rating is due to a sole mental health disorder and you continue to work you run the risk of being re-evaluated and being reduced.

 

If you are rated 100% TDIU or Scheduler P & T or not then you should file for SSDI (Social Security Disability Insurance).

 

Filing for the SSDI is what really confuses me.  What little of a retirement that I acquired (~25% of what it should have been) was in a NON-SS system, aka separate pension system.  PLUS that separate system has a wind fall profit pension off-set system where they actually take back from any SS you may have earned.  AKA, I earned a minimal teacher's retirement system retirement in Texas.  Filing for SSDI wont even help me if the Teachers Retirement System actually "offsets" any SS retirement benefits.  In other words... Flocked in BOTH directions... 8-(

[HorizontalMike]

Well, the VBA just deposited my FIRST 100% TDIU check for $2906.13 for the month of December!  At least THAT part of my claims/appeal appears to be settled.  Having said that, the only thing in writing that I have received has been a "Summary of Case" that indicated that the VA will pay the attorney directly and made a reference to "a rating decision was made November 13, 2015" in my case/appeal.

STILL NO OFFICIAL RATING LETTER, even after ~6-weeks.

Hey Pete, I will have to research the SSDI benefits.  I know that my Teachers Retirement System(TRS) of Texas will abscond with 40% of any normal SS benefits I will eventually get.  I wonder IF that would still happen if I am now 100% disabled?  I wonder if SSDI would protect my interests in that case?  Any way here in Texas we have a "Windfall Profit Offset Tax/Provision" that allows TRS to reduce, by 40%, any Soc Sec benefits.  Like I'm rich by "double dipping..."  What a joke...

[Guest]

Hey Pete, I will have to research the SSDI benefits.  I know that my Teachers Retirement System(TRS) of Texas will abscond with 40% of any normal SS benefits I will eventually get.  I wonder IF that would still happen if I am now 100% disabled?  I wonder if SSDI would protect my interests in that case?  Any way here in Texas we have a "Windfall Profit Offset Tax/Provision" that allows TRS to reduce, by 40%, any Soc Sec benefits.  Like I'm rich by "double dipping..."  What a joke...

 

Mike, the one thing I found out about social security is to make sure you get it in writing.  In other words, there are times when people call and go into social security and inquire about benefits and they are/were given miss information.  I know one veteran who was denied benefits and then social security told him that they made a mistake in his decision.  Veterans are suppose to get some type of special circumstances when calculating their benefit time. So my advice would be file a claim and then find an experience social security law attorney to review your case and go from there.  

Hope the Best