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

 

[Buck52]

zat954

Asknod   aka Alex Is one of the best there is here on hadit to help veterans  you can take what he says to the Bank. 

He knows what he talks about.

If I needed him I'd sure Hire him  and I might need him someday...never know with the crazy VA eh!

.............Buck

[zat954]

Just now, Buck52 said:

zat954

Asknod   aka Alex Is one of the best there is here on hadit to help veterans  you can take what he says to the Bank. 

He knows what he talks about.

If I needed him I'd sure Hire him  and I might need him someday...never know with the crazy VA eh!

.............Buck

Agreed. Thanks to all you guys. 

[john999]

I am 66 years old and have been TDIU P&T since August, 2001.  I have SMC "S"  because I got an extra 60% in 2008 for heart disease as a complication of SC DMII due to AO.  I have a 70% rating as headcase, 60% rating for heart,  20% rating for DMII and four ratings for PN in all four limbs.  I don't make it to 100%  and never will unless I have  a heart attack or maybe get cancer related to AO.  I am not looking forward to that case.  I will have 20 years in at 90% TDIU P&T when I am 71 years old.  I was on SSDI until I hit 66 and now just regular SSA.  I wonder if the VA will decide I no longer am TDIU or P&T 9 months before my 71st birthday if I am still alive.  I do wonder what the VA will do when I get close to the 20 year mark for TDIU P&T?  Will I improve and suddenly be able to go out and get a job at age 71?  That is a littler over 5.5 years away.  I guess I should try and get 100% scheduler, but with recent interactions I have had with the VA I think any more interactions with them could be fatal to someone, hypothetically speaking.

[zat954]

5 hours ago, asknod said:

For argument's sake, you could petition the VA to rescind your SMC S and ask them to rate you at 100% P&T. That would not be 100% schedular as I pointed out earlier. You have no 100% ratings. Unless you have been rated at 100% schedular for any one disease or injury, you add up your disabilities using the chart on 4.25. VA has used 4.16 to determine you qualify for TDIU based on MDD @ 70% . This "frees up" the rest of your ratings to make the argument for SMC S like Mr. Bradley did.

But...If you insist on going the "add 'em up" route, you end up here .... 70+ 50= 85/// 85 + 40=91///91 + 20=93///93+ 20=94///94+10=95>>> .100%. However, you have now used up all your ammo to get to 100%. That doesn't mean automatic P&T. That is another hurtle accomplished by showing there is no improvement over 2 years at the next C&P exam. Assuming your condition is static, you'd get the P&T but where are you going to assemble additional ratings to attain SMC (s)? You just shot them all to get to your 100%. Do you see the logic now? VA accorded you the most lenient reading of the ratings based on your ability to be employed (or not). It was a TDIU decision as they clearly stated in the decision language I copied for you. Forget the words "100% schedular". You aren't. VA is empowered to grant whatever they want whenever they want to. You can get TDIU with no 8940. It hinges on how disabled you are and how disabled VA views you too.

As for obtaining your most up to date ratings awards sheet, you may ask VA to send you one by filing a 21-3288 and specifying it. I'd ask for the c-file in its entirety before it accidentally burns up in the Friday July 13th, 1973 fire. VA keeps on blaming the loss of their files to that even if you served in Desert Storm.

For the record, I do have several Vets who are 60% TDIU for Hepatitis with a subset of other diseases associated with it like DM2 and thyroid problems. Everyone of them has filed VA 9s for 100% schedular in spite of being TDIU for the reasons I described above. You, too, can file a claim for increase to 100% for your MDD if you can qualify for the particulars needed. At that point you'd still be in the same financial position but in a far better and secure ratings place than a TDIU--and you could work without the TDIU penalty. 

What the hey? Look  at me. I never intended to work  again after I did a year and 4 surgeries at the VAMC. Now I'm preparing for an exciting new life as a VA agent (hopefully). I'm glad I went for 100% schedular at the outset rather than let VA blow TDIU smoke up my derriere. Always remember this. There is no such thing as "permanent TDIU". I do not care how many assurances you get that "no more examinations are scheduled". If you put one penny into SSI and VA sees it, they'll be knocking on the door and asking for a new C&P. 

Asknod when you have time I'd like to get more info on how to properly go about doing this process properly: 

 

"For the record, I do have several Vets who are 60% TDIU for Hepatitis with a subset of other diseases associated with it like DM2 and thyroid problems. Everyone of them has filed VA 9s for 100% schedular in spite of being TDIU for the reasons I described above. You, too, can file a claim for increase to 100% for your MDD if you can qualify for the particulars needed. At that point you'd still be in the same financial position but in a far better and secure ratings place than a TDIU--and you could work without the TDIU penalty. How would I utilize my diagnoses to file a VA 9s for the 100% schedular and also where to find the particulars of need to ask for the 100%MDD. I was always under the obviously false impression that mental health or PTSD ratings of 100 were rarely permanent. But clearly I'm a novice after today. Thanks. 

[Chuck75]

8 hours ago, Buck52 said:

I added these rating %

70% 50% 40% 20%20% &10% and came up with Va Math at  94.816th percent   that rounded off to be a 90% VA Rating

but I could be wrong  but that's what I came up with  using the crazy VA Math tables

............Buck

There are some general clauses in the law that in essences say that the VA must use the most favorable method to the veteran (within the law) to calculate the disability (for payment amount).

With TDIU - It can easily be argued that since you cannot ever equal 100%, some minimum percentage is all that is required. Once this is reached, the rest of the disabilities should be calculated separately, and in what ever order is most beneficial, and still within the law. Lets say that the TDIU and 60% (SMC S) is reached. If the remaining disabilities warrant,  SMC can be increased. (This is where the VA must be watched like a hawk to make sure things are done correctly!)  I seem to remember that there was a court case about a similar situation.

Such things can be quite important if higher levels of SMC are involved.

 

Edited March 26, 2016 by Chuck75

[zat954]

13 hours ago, asknod said:

Let's say I offer good advice and maybe about 500 or so Veterans have used it to attain 100% schedular or TDIU. I am seeking accreditation at the moment and awaiting the outcome of my CBI ordered by VA's OGC.

Asknod.... I sent you a few questions last night I'm sure you haven't even seen yet but you sparked some major concerns with me and I did some research last night. I have some specific questions when you can. 

 

1) As far as reaching 100% MDD what would I need to add other than saying I'm having hallucinations, etc or would the fact that My wife gives me AA count? Which is true and a caveat of 100% I believe. 

2)Or, is a secondary rating  a plausibility that would be counted together with the MDD?

3)I'm still in my window of gulf war syndrome and I have always had symptoms of Fibromyalgia, CFS and some other presumption things I've just never gone after. 

4)lastly and probably most importantly and plausible, I have a SC for hypertension at 0%. It's controlled by meds which technically should be 10%. But regardless of that and More importantly I have documented over the past 5 years multiple times that I have cardiomyopathy (lvh) rating minimum of 30% based on Mri and possibly 60% based on Ef, as well as an arrhythmia requiring meds at 10% minimum proven on ekgs. My first diagnosis of this was right as I was being retired after my initial VA work up so it never got claimed originally. I think I mentioned it in the claim for increase in 2011 but I was so bad off mentally I didn't fight it. I had normal ekgs and bp and cardiac size as per a meps chest X-ray upon enlistment, so claiming sc secondary to my hypertension should be an eventual no brainier. That's a minimum of 30% lvh and 10% arrhythmia right away and I already have documents. Very Thorough. 

 

Up Until now everyone has always told me "you're 100% p&t don't rock the boat with new claims that could prompt a new C&p possible reduction",  But after your input not only does attempting to hit that 100mdd sound reasonable, but the cardiac issues are just smart to put in my record from a health standpoint and build in another 40% overall while protecting myself correct?

 

 As for The gulf war symptoms I've always shrugged them off as just being in a lifetime of misery from injuries rather than legitimate presumptive claims I should pursue.

And then there's good old smc k for Ed which is pretty much a guarantee with all the meds and depression and bp issues.

 

I'm assuming I should go after all of these things or at least some? Is there any benefit to waiting, or if so does it outweigh the risk of not waiting?

 

Im Sorry for all the questions this is obviously a lot of research and time I'm asking of you especially how to build these claims properly but you sparked some very serious truths I was not thinking of and I want to do it all right. What should I do, how do I do it and when should I start? 

 

Thanks 

 

Reed