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

 

[zat954]

12 minutes ago, asknod said:

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.

Thank you for your patience and knowledge. I'm starting to understand what you are saying about the reason why I qualify for the smc s and how I am not 100% schedular for any one disability.  So after rereading your edited post and learning about the actual "rating" sheet, I have a few remaining questions. 1. How do I go about getting this official rating sheet?

2. If the Tdiu was never applied for or an option here, the total Schedular rating adds up to their number based on the following sheet officially correct? http://www.benefits.va.gov/compensation/rates-index.asp#combinedRatingsTable1  

i am trying to process and respond to you and buck52 as well. I see many computation tools out there and I have seen where these disabilities add up to 94.8, however the chart is what I'm told by the va repeatedly that they actually use. So if the chart is what is used then I would only be Schedular 100% added up, forgetting this Tdiu and smc verbiage correct?

in response to both of you I 100% agree the VA is a monster and by no means am I trying to test them just better understand  at the end of the day I may never heal to be able to hold full time employment but at 37 I want to try. I hope that makes sense.

leading me to 

3) if there is a way to confirm that I am, or would be 100% schedular based on all 6 injuries and that chart, and if yes is there a way to request to have Tdiu removed? Again these are hypothetical questions and way way down the road if ever possible  

Also yes Buck52 my letter awards chapter 35 and says no future exams scheduled. It listed all the injuries in detail with a code and an explanation and percentage. It said permanent and total. It awarded ch 35 and then it said Tdiu is also awarded. All general statements. I'd love to get a copy of the true numbers and codes. Thank you  

 

 

[zat954]

14 minutes ago, Buck52 said:

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

Thank you Buck. I responded to some of your posts in my last response to asknod.  I love this community I'm learning so much and you guys certainly know the right people to contact. Thanks. 

[FormerMember]

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. 

[zat954]

11 minutes 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. 

Lol. You're right I should get the C file before it vanishes. Good point. And I do understand now what you are saying. I could potentially get housebound removed and Tdiu and go 95% but that doesn't guarantee a p&t ON that 100%. So do you help guide vets with these things? If not that is what you should do for a living. I'd hire you to try to get the 100% MDD and bolster some other ratings. Thank you for clarifying. Basically don't do anything at all UNLESS the day comes I'm 100% able to walk into a well paying secure Jon I enjoy and am willing to lose my 100%. 

[FormerMember]

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.

[zat954]

12 minutes 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.

Well I appreciate it and I'll definitely be seeking more in the future. Good luck to you