Will 100% TDIU P&T be dropped if SC ever tops 100%

[HorizontalMike]

QUESTION:

Will/can a 100% TDIU P&T award get removed if my service connected disabilities reach or top 100% ?

I ask this because I am +5yr into my appeal process and have received a "partial award" from the VA, as the rest of my appeal moves forward.  I was given an increase to 70% TBI to qualify me for 100% TDIU which started last year.  Already have 10% Tinnitus.

Still on appeal is:

• MDD -- Arguing for 70% but probably will get 50%
• Sleep Apnea -- OSA with CPAP required to be rated at 50%

My lawyer is inferring that I would be in jeopardy if I try and get +100% Scheduled award disability.  I have also heard from a fellow poster (I referred to same lawyers) who informed me that after getting his early/easy disability award, this firm dropped him on his appeal moving forward.  In other words, they took the easy money/award and ran on the tougher stuff.

What my lawyer currently predicts my disabilities totaling at 94% (70-BTI, 50-MDD, 50-OSA,and 10-Tinnitus) which rounds DOWN to 90% award. He does not want to appeal further, apparently.

My lawyer's inference that my 100% TDIU would be in jeopardy if I continue to pursue my scheduled appeal status, just does not sound right to me, but how can I know for sure? 

[broncovet]

They wont award TDIU And 100 percent.  Its considered to be moot.  Yes, I appealed the moot ness of tdiu and I won a remand.  

Still, VA old school still thinks its moot.  

I have 100 percent AND TDIU, but not at the same time.    They made sure of that, tho I still think its possible.  It reminds me of getting around the schedular requirements for TDIU.  Yes, there is 4.16 b, but you have to fight the VARO to even get an adjutication for 4.16b.  

To me, its just like the "benefit of the doubt".  Its there, on paper, but in reality, its pretty much the VA who gets the benefit of the doubt.  Ditto for getting 100 percent when you are already tdiu.  While it may  happen, IMHO its not even close to worth the hassel unless you would also get SMC s and not get it otherwise.  

[HorizontalMike]

8 hours ago, broncovet said:

They wont award TDIU And 100 percent.  Its considered to be moot.  Yes, I appealed the mootness of tdiu and I won a remand.  

Still, VA old school still thinks its moot.  

I have 100 percent AND TDIU, but not at the same time.    They made sure of that, tho I still think its possible.  It reminds me of getting around the schedular requirements for TDIU.  Yes, there is 4.16 b, but you have to fight the VARO to even get an adjutication for 4.16b.  

To me, its just like the "benefit of the doubt".  Its there, on paper, but in reality, its pretty much the VA who gets the benefit of the doubt.  Ditto for getting 100 percent when you are already tdiu.  While it may  happen, IMHO its not even close to worth the hassel unless you would also get SMC s and not get it otherwise.  

So just how would one EVER get to SMC status if you (in this case I) got 100% TDIU P&T at just 70% Schedular? 

What I fear is the ever increasing frequency of the GOP trying to eliminate TDIU and default our disability into an entirely different program that was NEVER meant to be such, Social Security.  Sure, it has been shot down the past couple of times, BUT THEY KEEP TRYING TO TARGET TDIU! 

That proposed legislature doesn't make sense because TDIU affects how/if one can work AND CONTRIBUTE to S.S.  In other words you don't/can't earn S.S. so any S.S. benefits will be minimal at best, if at all!  The disability itself prohibits earning S.S.

I somewhat understand your "VA argument", but as we all know, the VA is very picky and will look for ANY opportunity no matter how small, to deny.  And THAT is why I am STILL sending in the VA 41-2140-1 unemployed form every year EVEN THOUGH THE VA HAS NEVER REQUESTED IT NOR COMMUNICATED THAT REQUEST/REQUIREMENT. 

GEEZ, I have a letter from the Director of the Houston VARO denying my appeal, AFTER it has already been certified to The Board in Washington D.C....!  Crazy stuff!  So I continue with my VA paranoia.

 

[broncovet]

I can understand your worry.  My mother was a worrier, and so are lots of others.  I have a 95 year old distant relative, and I asked her how she is doing.  Well, she told me she was worried. 

I asked her what she was worried about.  She was worried that she would run out of money before she died.  Now, she had 10 years of income in the bank!

People who are looking for something to worry about will find it, no matter what.  This lady, when she was a child, started worrying about how she would do in school.

Then she worried about a future husband, later about kids, retirement, and she never stopped.  

Im not wasting my life worrying about tommorrow, tommorrow will have troubles of its own.  Im not disputing that there COULD be an issue with tdiu,

but I choose not to worry about VA's possible reductions, as they are unlikely.  Sure, I could wake up tommorrow with no aches and pains and compoletely

cured of all my maladies.  If that happened, I would go get a job and re enter the workforce, probably as an entrepeneur, from what I have learned over the years.  

My church sings a song, "Im no longer a slave to fear...for I am a child of God."  

Frankly, I think there are far worse things to worry about..War with Korea being near the top.  Our country 20 trillion in debt is also way up there.  I think that is about 65,000 for every man, woman and child in America.  I have no idea how I would pay off 130,000 in credit card debt for my wife and I..in the form of extra taxes.  

[Buck52]

HorizontalMike

Just my 2 cents

 what they might do if you get another 2 -50% ratings beings they are separate ratings they will combined the 2 and keep you at the 100% final degree rating, you need to watch this very close  if those 2 -50% ratings become a 70% rating  then with what you already have (IU)they should inferred the SMC S  DEPENDING ON THE SEVERITY OF THE DISABILITY'S COMBINED.

 Remember you can't have the same rated S.C. disability twice.

You can't have 2 =100% ratings at the same time......Its just a higher degree of ratings ,after the 100% then its all combined in to the SMC Special rating table.

although most of us veterans do see it has  were rated more higher than 100% and just add what our total ratings would be.

my ratings add up to 190%  just counting the # rated  S.C. disability's but the VA says I have a final degree rating of 100% with  2 SMC 

  After 100% this is when the SMC Kicks in so-to-speak

but the way the rating system is set up they make it hard for veterans to reach the SMC  IF they don't have the separate 60% or higher % separate S.C. Disability....but they do combined the other separate S.C. Rated disability's  its just hard reaching the SMC.

I know this is hard to understand   but we won't never understand the VA.

(If that makes any sense to you)

They call it  like'' YOU HAVE A FINAL DEGREE RATING OF 100% with SMC   

 

[HorizontalMike]

Broncovet,

Yes, I can rationalize your "...don't worry, be hoppy monn..." attitude, but the very nature of my TBI and MDD is adversarial and as such there is little I can do about that aspect.  It has caused many job turnovers throughout my "career" and has resulted in being unemployed at least +12 out of the past 14yr (past 11-1/2yr continually.

Anyway, back to the original question... I would like to actually KNOW if adding schedular disabilities would actually CAUSE the 100% TDIU P&T to be rescinded if and when those schedular disabilities reach or surpass 100%? 

We all know that any particular schedular disability can be altered/reduced at a future time, but would that eliminate that original 100% TDIU P&T rating or just default back to that status?

P.S. Trying to follow up on our shared experiences with a particular law firm, in order to determine counsel's motivation to either stick or bail at a particular stage...

[HorizontalMike]

1 hour ago, Buck52 said:

HorizontalMike

Just my 2 cents

 what they might do if you get another 2 -50% ratings beings they are separate ratings they will combined the 2 and keep you at the 100% final degree rating, you need to watch this very close  if those 2 -50% ratings become a 70% rating  then with what you already have (IU)they should inferred the SMC S  DEPENDING ON THE SEVERITY OF THE DISABILITY'S COMBINED.

 Remember you can't have the same rated S.C. disability twice.

You can't have 2 =100% ratings at the same time......Its just a higher degree of ratings ,after the 100% then its all combined in to the SMC Special rating table.

although most of us veterans do see it has  were rated more higher than 100% and just add what our total ratings would be.

my ratings add up to 190%  just counting the # rated  S.C. disability's but the VA says I have a final degree rating of 100% with  2 SMC 

  After 100% this is when the SMC Kicks in so-to-speak

but the way the rating system is set up they make it hard for veterans to reach the SMC  IF they don't have the separate 60% or higher % separate S.C. Disability....but they do combined the other separate S.C. Rated disability's  its just hard reaching the SMC.

I know this is hard to understand   but we won't never understand the VA.

(If that makes any sense to you)

They call it  like'' YOU HAVE A FINAL DEGREE RATING OF 100% with SMC   

 

Thanks Buck,

Here is my issue, according to me.  My TBI was originally rated at 40% TBI + 10% Tinnitus =50%.  The TBI 40% was rated a 2 under Abnormal Social behavior.

Got a partial grant that too 70% under Neurological 3.  Then TDIU kicked in, but as always the VA screwed up the effective date, so appeal continues.

The BIG issue is that the VA has declared that my MDD is to be considered SECONDARY under the Tramatic Brain Injury, and should be rated separately.  HOWEVER, what the VA has done thus far, is to ONLY rate the TBI under "Residuals of TBI" and have failed to rate the MDD under its own diagnosis code.

My lawyer has indicated that the most recent C&P will probably get me 50% under MDD (besides the 50% OSA w/CPAP).  The current TBI is 3 under Neurological (read MDD) residuals and Social is only at 2, which I argue is actually a 3, or at least it has progressed to a 3 over time.  So I SHOULD be able to get a 70TBI+70MDD+50-OSA+10Tinittus that would put me at +97% rounded to 100%.  If this appeal only gets me 50% MDD the total would be 94% and round down to 90%.

FWIW, my additive total would be 200% if I get the 70% for MDD, OR my total at getting only a 50% MDD would be an additive of 180%.

The VA math would give me only 90% if my MDD is 50% OR 100% if MDD is 70%.  HENCE my issue with my lawyer only wanting to do the TDIU and not the entire package/appeal. If I am correct the higher MDD rating could/should give me 100% +SMC, right?

 

FYI ---- Copied Residuals and Secondary SC regulations below:

4.124a  8045 Residuals of Traumatic Brain Injury(TBI).

...[snip] Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table.
Evaluate emotional/behavioral dysfunction under §4.130 (Schedule of ratings–mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.”

 

AND HERE

 

3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease
or injury.
(a) General. Except as provided in §3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.
(b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. (Authority: 38 U.S.C. 1110 and 1131)
(c) Cardiovascular disease. Ischemic heart disease or other cardiovascular disease developing in a veteran who has a service-connected amputation of one lower extremity at or above the knee or service-connected amputations of both lower extremities at or above the ankles, shall be held to be the proximate result of the service-connected amputation or amputations.
(d) Traumatic brain injury.
(1) In a veteran who has a service-connected traumatic brain injury, the following shall be held to be the proximate result of the service-connected traumatic brain injury (TBI), in the absence of clear evidence to the contrary:
(i) Parkinsonism, including Parkinson’s disease, following moderate or severe TBI;
(ii) Unprovoked seizures following moderate or severe TBI;
(iii) Dementias of the following types: presenile dementia of the Alzheimer type, frontotemporal dementia, and dementia with Lewy bodies, if manifest within 15 years following moderate or severe TBI;
(iv) Depression if manifest within 3 years of moderate or severe TBI, or within 12 months of mild TBI; or

(v) Diseases of hormone deficiency that result from hypothalamo-pituitary changes if manifest within 12 months of moderate or severe TBI.
(2) Neither the severity levels nor the time limits in paragraph (d)(1) of this section preclude a finding of service connection for conditions shown by evidence to be proximately due to service-connected TBI. If a claim does not meet the requirements of paragraph (d)(1) with respect to the time of manifestation or the severity of the TBI, or both, VA will develop and decide the claim under generally applicable principles of service connection without regard to paragraph (d)(1).
(3) (i) For purposes of this section VA will use the following table for determining the severity of a TBI:

Mild                                         Moderate                                        Severe

Normal imaging                    Normal or abnormal               Normal or abnormal

LOC = 0–30 min                      LOC > 30 min < 24 hours       LOC > 24 hrs

AOC = a moment  <24 hrs    AOC > 24 hours.                      Severity based on other criteria

PTA = 0–1 day                         PTA > 1 and < 7 days               PTA > 7 days

GCS = 13–15                            GCS = 9–12                                GCS = 3–8

Note: The factors considered are: Structural imaging of the brain. LOC—Loss of consciousness. AOC—Alteration of consciousness/mental state. PTA—Post-traumatic amnesia. GCS—Glasgow Coma Scale. (For purposes of injury stratification, the Glasgow Coma Scale is measured at or after 24 hours.)

(ii) The determination of the severity level under this paragraph is based on the TBI symptoms at the time of injury or shortly thereafter, rather than the current level of functioning. VA will not require that the TBI meet all the criteria listed under a certain severity level in order to classify the TBI at that severity level. If a TBI meets the criteria in more than one category of severity, then VA will rank the TBI at the highest level in which a criterion is met, except where the qualifying criterion is the same at both levels. (Authority: 38 U.S.C. 501, 1110 and 1131)

[44 FR 50340, Aug. 28, 1979, as amended at 66 FR 18198, Apr. 6, 2001; 71 FR 52747, Sept. 7, 2006; 78 FR 76208, Dec. 17, 2013]

Edited November 8, 2017 by HorizontalMike