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

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HorizontalMike

Question

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? 

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My most current award letter is below at bottom (redacted). 

  • My TDIU is 100% P&T with NO scheduled exams in the future.
  • TBI increased to 70%
  • My MDD continues on appeal (see below in bold)
  • My SA-OSA, while not noted in this letter, has been corrected and continues on appeal.

While searching SMCs on this site, I came across this: https://ptsdlawyers.com/blog/bradley-v-peake-housebound-rate-160-percent/   BINGO!  This sounds like the best way to proceed, since my 100% TDIU was awarded separately using only the 70% TBI. 

  • My current 10% Tinnitus
  • MDD appeal (probably going to be 50% since much of the TBI Residuals are under #3 Neurological)
  • OSA - 50% appeal.  I am on CPAP and have SRs that show most of the symptoms of OSA.  FWIW, the term for the diagnosis wasn't even coined until at least 10yr later.

So, following the Bradley v. Peake ruling below, my 100% TDIU, being granted separately from the above, allows my other SC-disabilities to qualify me for SMC-S:

"...In the Bradley opinion, CAVC proposed it is possible for a veteran to be granted TDIU for a single disability and later granted service connection for another disability or other disabilities that amount to a 60 percent rating. CAVC indicated this interpretation complies with VA General Counsel’s 1994 opinion and 1999 opinion. CAVC held section 1114(s) does not limit a service-connected disability rated as total to only a schedular rating of  100 percent, and VA’s current regulation 38 C.F.R. 3.350(i) permits a TDIU rating based on a single disability to satisfy the section 1114(s) requirement of a “total” rating. Bradley v. Peake, 22 Vet. App. 280, 293 (2008).

The application of this holding is veteran’s who have been granted TDIU for a single disability, like ischemic heart disease or PTSD, and later qualify for additional service-connected disability or disabilities equal to 60 percent or more, qualify for section 1114(s) special monthly compensation..."

QUESTION: Does this all make sense? 

 

Rating Decision
11/13/2015
INTRODUCTION

The records reflect that you are a veteran of the Vietnam Era and Peacetime. You served in the
Navy from XXXXX  XX, 1972 to XXXXX  XX, 1975. You filed a claim for increased evaluation that
was received on July 8, 2015. Based on a review of the evidence listed below, we have made the
following decisions on your claim.
DECISION
1. Entitlement to individual unemployability is granted effective July 8, 2015.
2. Basic eligibility to Dependents' Educational Assistance is established from July 8, 2015.
3. Evaluation of residuals of traumatic brain injury to include mild memory loss, abnormal
social behavior, insomnia and light sensitivity, which is currently 40 percent disabling, is
increased to 70 percent effective July 8, 2015.

EVIDENCE
• VA Form 2 l-8940, Veteran's Application For Increased Compensation Based On
Unemployability, received July 8, 2015
• VA Examination, VA Outpatient Clinic, dated September 8, 2015
• VAMC (Veterans Affairs Medical Center) treatment records, VA Healthcare
System, from June 25, 2003 through November 5, 2015

REASONS FOR DECISION
1. Entitlement to individual unemployability.
Entitlement to individual unemployability is granted because the claimant is unable to secure or
follow a substantially gainful occupation as a result of service-connected disabilities, effective
July 8, 2015, the date you met the schedular requirements for this benefit.
The evidence shows the examiner noted that your residual conditions attributable to a traumatic
brain injury impact your ability to work and that you last worked in 2006.

2. Eligibility to Dependents' Educational Assistance under 38 U.S.C. chapter 35.
Eligibility to Dependents' Educational Assistance is derived from a veteran who was discharged
under other than dishonorable conditions; and, has a permanent and total service-connected
disability; or a permanent and total disability was in existence at the time of death; or the veteran
died as a result of a service-connected disability. Also, eligibility exists for a service person who
died in service. Finally, eligibility can be derived from a service member who, as a member of
the armed forces on active duty, has been listed for more than 90 days as: missing in action;
captured in line of duty by a hostile force; or forcibly detained or interned in line of duty by a
foreign government or power.

Basic eligibility to Dependents' Education Assistance is granted as the evidence shows the
veteran currently has a total service-connected disability, permanent in nature.

3. Evaluation of residuals of traumatic brain injury to include mild memory loss.
abnormal social behavior. insomnia and li&ht sensitivity currently evaluated as 40 percent
disabling.

The evaluation of residuals of traumatic brain injury to include mild memory loss, abnormal
social behavior, insomnia and light sensitivity is increased to 70 percent disabling effective July
8, 2015.

The effective date of this grant is July 8, 2015. Entitlement to an increased evaluation has been
established from the date the claim was received. When an increased evaluation is granted based
on VA medical evidence showing an increase in disability after the date the claim was received,
the effective date of the increase is the date the claim was received.
The examiner noted that your residual conditions attributable to a traumatic brain injury impact
your ability to work. The examiner stated that you also have a diagnosis of depression which
may also cause changes in cognitive function, but because of the considerable overlap of
symptoms between TBI and depression, it is not possible to determine if the cognitive symptoms
are specifically related to either TBI or depression without use of mere speculation. The issue of
depression is currently on appeal and will be addressed at a later date by the Appeal team.

An overall 70 percent evaluation is assigned for your residuals of traumatic brain injury to
include mild memory loss, abnormal social behavior, insomnia and light sensitivity based on the
highest level of severity of "3".
This is a partial grant of benefits sought on Appeal

Edited by HorizontalMike
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  • HadIt.com Elder

I got TDIU on a 70% rating.  Some years later I got an extra 60% and I got "S",  but I had to file a CUE to get it.   I don't see how the VA can take away your TDIU unless you go back to work.   Bradly V Peake is the case that was granted SMC  S for a TDIU case where the vet had TDIU plus 60%.  You get statutory S based on that rating.

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