lumbosacral SMC S, schedular 100, tdiu, P&T and working

[zat954]

Hello All,

 

I apologize anything redundant, i see this  topic is overrun with similar cases but none ive found like mine exactly and Im hoping someone can help or provide some direction.  Ive researched endlessly for an answer to my question. Im a medically retired fmf corpsman. Upon retirement in 2010 i was initially rated 80% (84) and ha a claim for tdiu as well as other increases. In 2013 after a c&p for psych and back injuries, I was upped to the following:

70% mood disorder (up from 30)

50% sleep apnea     (up from 30)

40% lumbar              (up from 20)

20% sternal injury

20% pectoral shoulder tear

10% cervical strain

total 100% (95) P&T

 

Interestingly my ebenefits lists these all accurately but still shows the previous rating for mood disorder (then diagnosed as MDD for 30%. I dont know why it still shows. the back increase was alone as was the sleep apnea (previously 20% and 30% respectively). So why MDD is still showing leads me to believe its probably a typo. 

 

Moving on. I am schedular 100% p&t. but i believe, because of the following explanation under my additional benefits section I am a Bradley vs Peake candidate: 

                  "Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of mood disorder (previously rated as major depressive disorder with anxiety disorder and body dysmorphic disorder (also claimed as involutional melancholia, severe insomnia due to pain, and adjustment disorder with anxious mood)) a single disability upon which a total individual unemployability rating is based and additional service-connected disabilities of lumbosacral strain claimed as lumbago pain and spasm , independently ratable at 60 percent or more from 09/09/2011.

Rating Date : 11/20/2013"

 

Now i dont understand bc my back injury is rated at 40% NOT 60% But im not complaining. My concern and desires are this; Im in Voc rehab now, and when i graduate will use my remaining 8 months of GI bill to pursue veterinary or physicians assistant school. So, Can I work freely due to being 100% schedular and P&T? In other words does that trump or in any way effect my SMC for TDIU B vs P? I do not fill out the 21-4140. The only feedback ive gotten anywhere is a moderator on YUKU who seems as educated in this as you are. His response was this:

 

                         "your disabilities combine to 95%.  So, in the eyes of the VA, you are schedular 100%.  That's why you don't get the annual employment verification form.  However, because you were (or could have been) IU based upon a single disability,you are eligible for SMC S (see “Bradley vs Peak” for reference. I know it's confusing.)  I think of it as a loop hole that allows for an additional benefit that you would not qualify for otherwise. Maybe that will help.In any event, you are not IU.  As long as your current ratings remain in force, you can work all you want without affecting your benefits for dependents - ChampVA and Chap 35."

 

So needless to say im confused. The overall goal is to get back into a career and maintain my 100% Schedular P&T, as ive earned it. Now i know there is no crystal ball that can see if ill be called for a C&P in the future, but would going back to work prompt this? Should i request the smc removed as well as tdiu or ask for forgiveness in the future not permission? If this moderator, who is extremely resourceful from what ive seen, is correct the tdiu is secondary and ive earned the smc s according to guidelines, regardless of actual employment ability and my employment should not prompt an evaluation, particularly because I dont fill out a 21-4140.

 

So if and when anyone has time id love your opinion on this, as I do WANT to work, but i want to play this game of chess with the VA very carefully. Im happy to give up smc, and tdiu, but not 100% schedular PT or the benefits educationally my wife gets. Please let me know your thoughts. Work is still a minimum of 14 months away. Thank you.

 

V/R

 

Zat954 HM3 retired

 

[Chuck75]

The VA has always been a bit odd about SMC. Anyway one of the ways a veteran can be entitled to SMC "S" is statutory, and also impacted by a court ruling.

Basically, this says that when a veteran cannot leave his home for the purpose of work, then SMC "S" is appropriate. Under this scheme, I'd suppose working

for a substantial income would put SMC "S" in question.  And this is before TDIU even enters into things!

But, when you have 100% Scheduler P&T  and SMC "S" and the SMC S is due to 100 plus 60, I don't see how the VA could change things, other than to try reducing an existing rating.

[john999]

If you are 100% scheduler or TDIU and have an extra 60% above, beyond and separate from the initial 100% or TDIU rating then you are eligible for statutory "S".   If you are 100% and you are substantially confined to your home with or without the extra 60% you may be eligible for "S".  Do you work at home?   How do you think the VA views a vet who wants to get 100%,  "S" and go back to work full time?           Do you think that asking for all these benefits and wanting to work at the same time is reasonable?   I think you are crazy to even think about working under these conditions.   I would not ask for "forgiveness" later after the VA learns somehow you are working and getting "S" and then drags you in for a C&P exam .    There is no forgiveness.  Do you think American public intended for vets to be 5X dippers when they invented VA compensation for 100% disabled vets?  Are you going to apply for SSDI as well and then look for a loophole so you can also work full time and gather all known benefits for you and yours?  How crazy are you?  You have 70% for a mood disorder.  Your post has put me in a bad mood thinking how greedy you are.  Jesus, man, think about what you are asking for!  I have been p&t for 16 years and have not worked a day in that time.   That is because I can't work.   I am not trying to play the system and make a mockery of VA compensation.    You think you should get your retirement, 100% from the VA,   housebound, and work full time.   You must be crazy like a fox because only a "get over" could dream up that plan.  Excuse me but I want to vomit.

 

[justrluk]

Just for clarification: your overall percentage is 100% and you have confirmation of Chapter 35 benefits and no further examinations scheduled? If so, working is up to you. If you are TDIU (v. P&T), your rating suggests you are 100% *and/due to* inability to work. So, if 100% P&T, yes you can work. Not P&T (should show on your commissary letter or in a decision if you are), you can work if 100% schedular (total using VA math). 100% due to TDIU, work has limitations.

Edited March 25, 2016 by justrluk

[zat954]

Thank you for the replies. John999 my apologies if I offended you, but if you refer to my last paragraph I clearly state "Im happy to give up smc, and tdiu, but not 100% schedular PT or the benefits educationally my wife gets."

I want to work. I earned 100% schedular P&T. Apparently i also qualify for 100/60 per guidelines. I dont make the rules. I never asked for SMC S. Id prefer the schedular ONLY and not rock the boat. At 37 im fighting like hell to get back to the real world. However just to make something clear, the military had no problems throwing any of us in uniform to the wolves, and fighting you for your benefits tooth and nail eternally. Too many vets have passed away before ever getting what they deserve.... So to answer your question: "You think you should get your retirement, 100% from the VA,   housebound, and work full time?.... I think we all deserve everything we can get. we signed a blank check to the government. However, That said, No, i dont want to double or triple or any dip. I just want to work and be productive and keep my 100% schedular I earned. I feel thats fair and it wouldnt even be a question if they just granted the 100% schedular from day one and not this situation. Also you refer to my "retirement"; I was medically retired after 6 years of service. So my disability IS my retirement. I do not get an additional pension. As for SSDI i have applied until Im working. I want zero special treatment. If you reread my entire post you should come to the conclusion that I would like, if i am able to work full time again, to have tdiu and smc s removed, without prompting an evaluation. Nobody wants evaluations. I hope thats a little more clear. Thank you

[zat954]

1 minute ago, justrluk said:

Just for clarification: your overall percentage is 100% and you have confirmation of Chapter 35 benefits and no further examinations scheduled? If so, working is up to you. If you are TDIU (v. P&T), your rating suggests you are 100% *and/due to* inability to work. So, if 100% P&T, yes you can work. Not P&T (should show on your commissary letter or in a decision if you are), you can work if 100% schedular (total using VA math). 100% due to TDIU, work has limitations.

Thank you senior. I am definitely P&T, as well as 100% schedular. I believe as Chuck75 states its a mandatory 100/60 Bradley peake rule. So technically I am both. Again this is all speculation bc nobody knows what the VA will do if and when I can work. My logic is that if that time comes, the only monetary difference is the SMC S money i get,, as schedular 100 and tdiu are both financially the same. I was considering if im capable just going back to work and holding that seperate SMC S money in a seperate account if they decide to ask for it back. As for the 100% they cant just reduce my schedular rating without a C&P and due process so Im not losing anything there. By saying asking forgiveness rather than permission originally, i meant id prefer to go about this intelligently causing as little ripple as possible. Im happy for my benefits but id rather be better and productive. thank you

[Chuck75]

10 minutes ago, zat954 said:

Thank you senior. I am definitely P&T, as well as 100% schedular. I believe as Chuck75 states its a mandatory 100/60 Bradley peake rule. So technically I am both. Again this is all speculation bc nobody knows what the VA will do if and when I can work. My logic is that if that time comes, the only monetary difference is the SMC S money i get,, as schedular 100 and tdiu are both financially the same. I was considering if im capable just going back to work and holding that seperate SMC S money in a seperate account if they decide to ask for it back. As for the 100% they cant just reduce my schedular rating without a C&P and due process so Im not losing anything there. By saying asking forgiveness rather than permission originally, i meant id prefer to go about this intelligently causing as little ripple as possible. Im happy for my benefits but id rather be better and productive. thank you

"but id rather be better and productive. thank you"

There is even a possibility that SMC "S" is actually a lower SMC level than you may be entitled to! Beyond that, there are productive income producing ways that are not classed as employment.

As an example, investment management and derived income is just one of many possibilities. This is possible for some veterans if they have received a significant amount of retro. The last few years I was still working, and waiting for the VA to do their thing, on a daily basis, I had paper gains and occasionally losses that were well above my weekly after taxes salary

Investment dividend income is non employment income.

Edited March 25, 2016 by Chuck75