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

 

[FormerMember]

Zat,954-

For the record, you are

70% schedular for MDD

50% schedular for SA

40% schedular for lumbar

20% schedular for sternum

20% schedular for pectoral

10% schedular for cervical

You are not 100% schedular for any one of these. You are P&T TDIU. Here's why. You cannot use eBenefits ratings sheets as the metric for what you are or are not. You do not have one (1) disease or injury rated at 100% schedular using Part 4, 38 CFR. Without that, you will never be "100% schedular".

You are rated TDIU at P&T for the 70% MDD alone. TDIU expressly holds you need a single disability 60% or greater  Or.... a combo of disabilities that consists of one 40% rating and others that add up to a combined (VA math) 70%. (4.16) From the language, it sounds as if they combined several MDDs to arrive at a combined 70%. 

Since you are 70% for your MDD, which a true VA ratings sheet would show in your c-file, any combination of disabilities that add up to or exceed 60%, be they from lumbosacral or other etiologies, AS LONG AS THEY DO NOT INVOLVE MDD, will entitle you to SMC (s). This is the sole basis for your entitlement.

I see far too many Vets become enamoured of the phrase "100% schedular." Far too many Diagnostic codes top out at less than 100% schedular and force us to seek TDIU. VA doesn't apply TDIU quite the way we think of it. One disease, the moment it reaches 60% is the springboard for TDIU all by itself. VA is not going to do a rolling addition of all your disabilities to get to a (95>%)= 100% rating if any single one is 60 % or greater. Likewise, if you have a 40% and others that reach 70%, they begin the process of examining you from a TDIU perspective. We currently have to file a 21-8940 if we're "iffy" to get it. At that point it becomes an extraschedular TDIU. If the combo of your ills is deemed insufficient to prevent you from working, you flunk the TDIU test. 

In your case, they determined that the combo of  MDDs at 70% is the sole reason you are unemployable. If you are P&T and never work again, your rating is substantially protected after 5 years by 3.344. However, if you go back to work, you risk having the TDIU rescinded. Trust me on this one.

Here's your TDIU:  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 .

As you point out, your lumbar problem is not 60% but VA has added all your "lumbar related" disabilities to make one independently rated disease or injury that does add up to 60% or more so that you qualify for the SMC S. This is one of those rare instances where they got it right the first time. Actually, with the number of diseases you have ratings for, they had no problem finding 60% because 50+40+20+20+10= 83% <80%.

Always read 3.350(i) for it's least complicated meaning. Just because it says 100% as the initial qualifier, remember Bradley turned that into TDIU as well. Also, the 60% required as the kicker can be one or more disabilities unrelated to the TDIU qualifier and also unrelated to each other such as your lumbar and sleep apnea issues.

If you choose to go out and work, you will lose your TDIU unless it is a sheltered family enterprise. I do not care what the YUKU wizard moderator told you. He's blowing bubbles. They do that a lot over at the Pink Site. I'm sure they mean well but you have to understand where their loyalties lie. Likewise, I see several individuals here have offered you advice which is incorrect. That is a problem when anyone, regardless of training, expresses their thoughts as defined law and regulation. When in doubt, get a confirmed ratings sheet and know the law. Never just take someone's word for it. I did that for a number of years by listening to my VSOs. Here: I'll attach one for you so you know what they look like. They specify exactly what you are rated for and how much. This is an old one. I have 2 100s (schedular), 60, 40, 30 and 10 now. 

The difference between 100% schedular P&T and TDIU P&T is that you can go out and work on a 100% scheduler P&T without the risk of losing your rating(s). Best of luck and thanks for your time spent helping America to remain great.

RBA Prime C-File 497.pdf

Edited March 25, 2016 by asknod

[zat954]

7 minutes ago, asknod said:

Zat,954-

You are not 100% schedular. You are P&T TDIU. Here's why. You cannot use eBenefits ratings sheets as the metric for what you are or are not. You do not have one (1) disease or injury rated at 100% schedular using Part 4, 38 CFR. Without that, you will never be "100% schedular".

You are rated TDIU at P&T for the 70% MDD alone. TDIU expressly holds you need a single disability 60% or greater  Or.... a combo of disabilities that consists of one 40% rating and others that add up to a combined (VA math) 70%. (4.16) From the language, it sounds as if they combined several MDDs to arrive at a combined 70%. 

Since you are 70% for your MDD, which a true VA ratings sheet would show in your c-file, any combination of disabilities that add up to or exceed 60%, be they from lumbosacral or other etiologies, AS LONG AS THEY DO NOT INVOLVE MDD, will entitle you to SMC S. This is the sole basis for your entitlement.

I see far too many Vets become enamoured of the phrase "100% schedular." Far too many Diagnostic codes top out at less than 100% schedular and force us to seek TDIU. VA doesn't apply TDIU quite the way we think of it. One disease, the moment it reaches 60% is the springboard for TDIU all by itself. VA is not going to do a rolling addition of all your disabilities to get to a (95>%)= 100% rating if any single one is 60 % or greater. Likewise, if you have a 40% and others that reach 70%, they begin the process of examining you from a TDIU perspective. We currently have to file a 21-8940 if we're "iffy" to get it. At that point it becomes an extraschedular TDIU. If the combo of your ills is deemed insufficient to prevent you from working, you flunk the TDIU test. 

In your case, they determined that the combo of  MDDs at 70% is the sole reason you are unemployable. If you are P&T and never work again, your rating is substantially protected after 5 years by 3.344. However, if you go back to work, you risk having the TDIU rescinded. Trust me on this one.

Here's your TDIU:  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 .

As you point out, your lumbar problem is not 60% but VA has added all your "lumbar related" disabilities to make one independently rated disease or injury that does add up to 60% or more so that you qualify for the SMC S. This is one of those rare instances where they got it right the first time. Actually, with the number of diseases you have ratings for, they had no problem finding 60% because 50+40+20+20+10= 83% <80%.

Always read 3.350(i) for it's least complicated meaning. Just because it says 100% as the initial qualifier, remember Bradley turned that into TDIU as well. Also, the 60% required as the kicker can be one or more disabilities unrelated to the TDIU qualifier and also unrelated to each other such as your lumbar and sleep apnea issues.

If you choose to go out and work, you will lose your TDIU. I do not care what the YUKU wizard moderator told you. He's blowing bubbles. They do that a lot over at the Pink Site. I'm sure they mean well but you have to understand where their loyalties lie. When in doubt, get a confirmed ratings sheet. Here: I'll attach one for you so you know what they look like. They specify exactly what you are rated for and how much.

RBA Prime C-File 497.pdf

Wow. You just blew my mind. You definitely are well versed. I follow the math and what you are saying especially the non MH adding up to 83%. But bare with me if you will. I'm learning as I go. I'm aware ebenefits is rarely accurate but on my main page it just issues me 100% disabled with a link to those percentages and how they stack up on the va website. It then lists all service and non injuries and percentages. Nothing about unemployable. To my knowledge again I know you say it's not law but that 70/50/40/20/20/10 does equal 95 and rounds to 100 schedular. The codes and numbers are also listed in my award letter and each rating is explained.   Typically that would supersede the Tdiu as normally you are not supposed to be both correct? Schedular precedes Tdiu. This is where BvP came into play correct  

Now on an additional page in ebenefits it adds "additional benefits" i.e. Ch 35, education benefits etc, which is where it lists that smc s is granted for the 70% mood and 60% related to lumbar. It reads as an add on. So essentially if either I had never filled out a 21-8940, or it was rated at 70 mood but not deemed a cause for Tdiu, I'd simply just be stationary at the 95% over the 6 injuries? So that would be schedular correct?  Does that make sense how I'm asking? Is there a way to find out if I am definitely 100% Schedular other than the va math?

[Buck52]

I never figured out why a veteran wants to work after receiving the VA's TDIU with or without P&T  (IT ALL PAYS THE SAME 100% RATE)

 This benefit is for us veterans that can't work and giving a certain % to boost you up to TDIU if your not at the 100% schedular rating.

Then why on earth would  a veteran still want to work?

besides there suppose to be Totally Unemployable!

The Risk of having it took away from you is not worth it and MOST veterans have hardships fighting for TDIU , Took me a few years to get it...had TDIU P&T 14 Consecutive years now & over age 55

Recently I filed a PTSD Claim and was approved for 70%  with my TDIU P&T Rating and the PTSD Rating met the critiera for me up to the statutory SMC S HouseBound.

extra 347 month with spouse.

Note Asknod   How would a veteran seek the rating sheet? call peggy? or RO? & Ask them to send one?

Thanks

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

 

 

[FormerMember]

Schedular refers to the actual percentage of the rating assigned-never to a composite, added up score. EBennies is deceptive. They do not have a little circle and TDIU to express it. When you hit TDIU, it pays like 100%. You are young. Let me forecast what will happen when your TDIU is 19 years and 3 months old. Suddenly, VA will reexamine you. You get called in for a C&P. Then another one. They need two to prove you got better on paper. Bingo, they reduce you based on the two exams. They will magnanimously rejigger the ratings to say you now qualify for TDIU again based on your back. You think everything is still hunky dory. If you check, you will discover they have reset your 10-year clock for DIC for you wife. You'll have to maintain this new TDIU for ten years in order for her to get the DIC benefit all over again.  I've seen it happen about 20 times. Each Vet was dumbfounded when he got broadsided. This is why I advocate for all my Vets to attain 100% as soon as possible if at all possible. Since most of the Vets I help are RVN boots on the ground and Hep C sufferers, getting to 100% schedular is not a problem and we usually find a way to get there from two different 100% schedular directions such as AO presumptives. Think of 100% schedular as a Harley. Think of TDIU as a  Cushman. They both get you there but you'll be wanting the 100% schedular to CYA. It's the gold standard and VA feel much less inclined to disturb the 100% schedulars. What the hey? Look at all the TDIU fish in the pond they can go after.

Additional benefits such as Chap. 35 are what ensue from the P&T only. Ratings, or more particularly ratings that exceed 100%, are the foothills leading to SMC. Don't confuse entitlements with compensations. DEA (Chapter 35 bennies) is an entitlement program predicated on reaching P&T. SMC is compensation based on how ginormous your ratings numbers are.

Reread my earlier  post.  I was busy editing it when you put up your next one.

Edited March 25, 2016 by asknod

[Buck52]

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

[Buck52]

This just my opinion

but I think it matters a lot on what they rate the IU FOR why they may come after the veteran with a C&P

Is it Temp IU? IS THE DISABILITY EXPECTED TO GET BETTER &IMPROVE OVER TIME?

or is the IU static/chronic in nature to be P&T...Ok either way they can come after ya with a C&P but highly unlikely if you have a static chronic in nature disabling disability.

being age 55 and over helps,

Remember Hadit CUE Specialist Ms Carlie, She was in the VA Hospital for testing purposes & after a few weeks or a week if I remember correctly and she was sent a C&P letter she had her disabilities at 100%static /chronic in nature no future exams scheduled plus SMC's 

she ended up emailing Bob  or Allison and they cancel her useless C&P

what a awful hit & heavy loss we all felt when ms Carlie Passed away.

I will always remember her saying'' get that IMO/IME  even if you have to sale Aluminum cans just get it.

 I sure miss her/her humor and her well informed post 

may ms carlie RIP

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

Edited March 25, 2016 by Buck52