tdiu changing a extra Scheduler rating to Scheduler?

[Buck52]

IF a Veteran is on a combined extra scheduler rating say  90%combined rating..VA  Awards him the Extra Schedular Rating for TDIU P&T  Because the veteran can no longer work...and is being paid at the 100%rate

ok now the veteran has filed another claim an was awarded 70% on that claim.

which made him eligible  for and met the criteria  for the SMC S 1 H.B.

VA  inferred that.

But on VA Benefits letter he is still considered IU...But his rating was moved up to the scheduler 100% rating says he is 100% rating  has the blue circle with the 100% # in it.

How would the veteran request drop the IU Now because he is considered  being 100% scheduler according to the VA Benefits letter in Ebenny's.

And been awarded the SMC S 1

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

[namvet6567]

As for extra-schedular, I helped a vet get his 50% rating for a skin condition, which is or was the maximum allowed % for a skin condition, then and probably still is.  The increase claim had been denied 3 separate times thru the congress persons offices stating that "50% was the maximum, allowed, each time."  We took it to the Central Office, in DC and won.  It took about 15 months, back in the late '90's.  The Central Office increased his rating and gave TDIU and gave him 3 yrs retro.  I tried to get him to go for the other 12+ yrs but he didn't want to chance losing what he had.  Nothing I could do, it was his claim and his loss.  The VA uses that "maximum allowed" BS to get vets to abandon their claims.  Sad but true.  

[Lemuel]

Tbird's post is the Regulation governing "schedular TDIU".

This link explains the difference between "schedular TDIU", granted by the AOJ or BVA, and extra-schedular TDIU granted by the Director, Compensation Services only.  You can also get other "extra-schedular" ratings from the Director, Compensation Services.

TWO ways to prove unemployability and win a VA TDIU claim. - Veterans Law Blog®

If you search "extra-schedular TDIU" even CCK has a misunderstanding.  The above link is what I personally experienced getting "extra-schedular TDIU" with a 40% combined rating from 1985 to 2009 when I qualified the "schedular TDIU" with a 40% rating for TBI and a combined rating of 70% which was granted by the BVA in my 2017 Decision.

An example might be the need for a higher rating for tinnitus than ten percent because you were a warehouseman, liked work on the floor but could not adjust to paperwork off the floor and thus became unemployed because of safety concerns of not being able to hear the back up beeps of the forklift.  If you became unemployed in this situation, I would advise the submission of an extra-schedular request for a higher tinnitus rating.  You would have to retrain for employment and your need to be able to do only manual things for your mental health would severely limit your employment options. Probably only lower paying farm work.

Edited February 1 by Lemuel
clarify

[Dustoff1970]

T Birds post about 38 CFR 4.16 is a very clear and straight forward regulation that has not changed since I first applied for IU/TDIU in 1998. However, some vets are confused about the difference between extra scheduler IU and scheduler IU.  Maybe need to relearn reading/understanding skills.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Edited February 1 by Dustoff1970

[Lemuel]

1 hour ago, namvet6567 said:

As for extra-schedular, I helped a vet get his 50% rating for a skin condition, which is or was the maximum allowed % for a skin condition, then and probably still is.  The increase claim had been denied 3 separate times thru the congress persons offices stating that "50% was the maximum, allowed, each time."  We took it to the Central Office, in DC and won.  It took about 15 months, back in the late '90's.  The Central Office increased his rating and gave TDIU and gave him 3 yrs retro.  I tried to get him to go for the other 12+ yrs but he didn't want to chance losing what he had.  Nothing I could do, it was his claim and his loss.  The VA uses that "maximum allowed" BS to get vets to abandon their claims.  Sad but true.  

Central Office is the extra-schedular which this situation appears to be.  To get the extra 12 years as an EED it can still be applied for with the explanation that he became unemployable the last time of his full time employment.  But the Director, Compensation Services has to weigh in on the Central Office DRO findings and you have to force the DRO to forward it to the Director, Compensations Services as required by the regulation on "complicated cases."

[Lemuel]

55 minutes ago, Dustoff1970 said:

T Birds post about 38 CFR 4.16 is a very clear and straight forward regulation that has not changed since I first applied for TDIU in 1998. 

My bad.  See my apology in a later post.  Tbird's post does not follow CCK's articles.  Strictly from the Regulation and Code.

Tbird's post follows CCK's articles.  Cannot fault her for the search that came up with an attorney firm with a misunderstanding of the difference between "presumptive schedular" and "extra-schedular". Read through the link I posted.  You will see the difference.  AOJ level and even DRO Central Office level can only grant the "presumptive schedular TDIU" not the "extra-schedular TDIU" with a 40% combined rating when I claimed the extra-schedular TDIU. I received in April of 2020 with an EED back to September of 1985 and filling in to the BVA granted "presumptive TDIU" with the effective claimed date of July, 2009.

Even the damn regulation, 4.16, which is in the schedule and therefore schedular, quoted refers to the presumptive conditions allowed as extra-schedular.  All it has done is reduce the Director, Compensation Services  work by setting presumptive schedular conditions which levels lower than the Director, Compensation Services, including the BVA being lower, because the BVA had to remand my "extra-schedular claim" to the Director, Compensation Services because I did not meet the presumptive criteria in 1987 when I claimed extra-schedular TDIU.

The important thing to get out of this, is the presumptive requirements are not hard and fast.  No matter your schedular rating, if you cannot get employment or have special circumstances in your employment, such as I had in my part-time employment from 1987 to 1990, (Notice, the Director covered that period of employment with TDIU).

I am an example of the difference as explained in the link I posted.  It is important for poverty stricken veterans to know they can get TDIU, no matter what the rating, without having to get some Central Office DRO to grant a higher rating, more directly by claiming "extra-schedular" to be referred to the Director, Compensation Services.  The Central Office DRO that receives such a claim, has to review it and forward it with recommendations.  The Director, Compensation Services then sets the effective date if granted as she did with mine.

Edited February 1 by Lemuel
correct error

[Lemuel]

5 hours ago, Tbird said:

Quote

38 CFR 4.16

4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: 

(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, 

(2) disabilities resulting from common etiology or a single accident, 

(3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, 

(4) multiple injuries incurred in action, or 

(5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 

(Authority: 38 U.S.C. 501)

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996; 79 FR 2100, Jan. 13, 2014]

I apologize to Tbird.  The post clearly shows the two different TDIU claims.  Schedular and extra-schedular.  See the part I enlarged.