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? 

[Gastone]

Mike, when did you get your original TBI award? Was it rated under the pre-2008 TBI Diagnostic Criteria or the updated Rating Criteria? What was your TBI Severity  determined to be?

[jfrei]

Just my issues with the RO my TBI was at 70% and with the other SCed issues 90% I appealed its Permanent nature by a NOD with my attorney it was made and changed at the RO that my IU was made 100 P and T in just 3 weeks where the RO was writing their SOC and said o wait this is Permanent now after his TBI was in 2006. Five months later my claim for my increase went through and the RO tried making me 100 Scheduler for just my TBI but take away my P and T already established by the appeal granted at the RO never even went to the BVA.. I went right to the RO and had my appeal they already granted for my TBi as P and T which is when they said it was a mistake to have me schedule for another TBi exam and it is P and T but I had to go nuts and march into the RO. To be clear I was IU for after claims finally granted backdated to May for 5 Months only before I was made scheduler...

Edited November 10, 2017 by jfrei

[Gastone]

Mike, if all of a sudden your CSC becomes 100% Scheduler or a New or Old SC becomes 100% by itself, your IU Rating would become 100% Scheduler. The only time that wouldn't take place is if in the Raters determination changing the IU to 100% Scheduler would result in you losing say an SMC S (1) Award.

You really need to spend some energy reviewing the the VA M21 for Raters and DRO's. This specific topic is covered in great detail. If you're not currently receiving SMC S (1) based on an (1) IU Condition being considered at 100% even though it's say 70% and a number of other non IU SC's that have a CSC of 60%, then the IU Rating would be dropped in favor of the 100% Scheduler.

As I mentioned previously, when I received a SA 50% bump to 100% P & T 12/15 my IU disappeared automatically, no advance notice required or given. Same thing happened to a Vet Friend that was IU for 15 yrs, recently 2016 filed for Housebound which was Denied. However a (2) of his long time SC's got increases that gave  him a CSC of100% Scheduler. His IU Rating was removed as of the Effective Date of his 100% Scheduler Rating. This did not change a $$ of his monthly comp. In my case the Rater also Awarded SMC S (1) because of the (1) 100% SC and (3) others that when combined had a separate CSC of 60+%. About a $314 or so increase in monthly comp.

Did your IU Award state No Future Exams Scheduled?  Which of your TBI Symptom's received the 70% SC?

[broncovet]

I think the best plan is to stick with your lawyer, Glover Luck.  Yea, I know its frustrating when we watch those TV ads that show how your lawyer will be right there with you and answer every question.  No.  Your lawyer has many other clients, and she has to divide the time between them, along with having some time to her own family.  So, most Vet lawyers expect Vets to go to their VA counselor, or maybe hadit for advice, and not endlessly email the lawyer with the latest:  "Gee, Joe won 430,000 with this idea..how about that one?"  

     Your set of circumstances is unique.  

     My 11 years on hadit has shown its almost NEVER a good idea to drop your attorney.  I can not think of but maybe one case where they dropped their lawyer and got a good result.  

Even then, it may have been because of what the lawyer did behind the scenes.  

     If you are upset because your lawyer did not analyze each of your "benefit hypothesis" you mailed her, then maybe you were unrealistic about the 

expectations from your lawyer.   How do I know this?  I did the same thing.  

    My lawyer won me TDIU.  I wouldnt be fighting for an earlier effective date had she not won the benefits first.  

    While I am saddened that GL did not accept my case for an eed, I realize that there simply are not enough lawyers for all the vets who need them.

So, they pick and choose the most winnable ones, that is, the ones in their area of expertise.  I noticed that not all lawyers who represent Vets take on

earlier effective date cases.  One even told me they did not.,  Lawyers get their "market niche" where they like certain kinds of cases, and reject others. 

They can do that when they are successful.  

[Buck52]

Mike go for it, if your IU   

 If you  was awarded at 70%  or 90% Using the extra scheduler rating system and you were awarded TDIU /P&T ..and later filed for other S.C. Conditions and were given a S.C. 70% rating on one of the conditions alone (say PTSD) even if you have other smaller conditions at 10% 20% 30%  ect,,ect,, they look at the separate higher rating the % of that rating.

(if a rating is fairly high say 70% or higher  common sense will tell you that that is a pretty severe condition)

As Gastone mention they should inferred the SMS S H.B because of the 70% S.C. PTSD Award alone, some will say it depends on the severity of the disability  but after a 70% award with an already 100%   then the raters are suppose to invite the SMS S H.B.   its a mandatory rating   but not all raters will catch that.

Here is a better example I was 90& TDIU/P&T For years & then was diagnose with PTSD I filed a claim for it  and was Awarded a 70% S.C. Rating

what the rating specialist did was give me a 100% final degree and with the SMC S H.B..   

As Gastone mention ..there's no mention of the TDIU anymore  it does give all your ratings on e benefits (EOB) what they are and where they occurred and what % each rating condition is.and also has the SMC And what they are  (letters)

So now when I log on to e benefits & check my EOB there's a little blue Ball that has 100% in the middle and  when you hoover the mouse cursor over it it gets larger.

So this has me thinking I am rated at the 100% scheduler rating & not actually TDIU.

This is just my opinion, its hard to figure out the VA the way they do things   this is just its opinion. (so please check with all the VA Criteria first)

My point is if a veteran is IU& P&T no matter how he got it as long as he got it,  he is actually consider 100% but they (VA) won't say that, So they say your 90% rating but being paid at the 100% rate   but if the veteran gets another 70% or higher award then  that automatically qualify's  him for the mandatory SMC S And considered a 100% final degree rating.

I am not sure why your VSO don't see this ?

If there's other Veterans here on Hadit that has been rated TDIU w/P&T & Filed for another S.C. Condition and was Awarded a 70% rating for that one separate condition?

 : Question,How does the VA have you rated? did you get the SMC S H.B??

[jfrei]

I filed for an Chronic adjustment disorder and instead of a separate rating since I was 90 IU P and T the raters decided that my TBI residuals should be rated at 100% instead of 70 and it’s dx code says 9411 under PTSD but was 8045 when it was just considered as my tbi residuals. I don’t even know how or what got me to scheduler anymore I almost need to get a VSO just don’t have time to visit a RO for help with two little ones...