VA status changed from TDIU P&T to Schedular P&T

[foreveryoung]

I was awarded 100% TDIU P&T

 

Edited January 29, 2022 by foreveryoung
error

[vetquest]

1 hour ago, foreveryoung said:

Just wanted to provide a followup on the Mission Act for Dental Care I mentioned in this post.

Everything I have read doesn't mention anything about dental care. Well today I received a call from the Chief Dental doctor at the VA Hospital I use. He told me he will allow outside dental care for me, but VA will need to find a provider in my area first that they will approve. We'll see how that goes.

That is great, wish you luck with your dental care.

[Richard1954]

This thread is really confusing .... but If I understand what the OP had stated.... he was awarded TDIU based on a combined rating of 90% not a single rating of 60% or more..... therefore he was not entitled to SMC S prior to him being awarded  a combined rating of 100%.   And it has already been determined that while he is now rated at 100% he does not have the additional 60% rating  for statutory Housebound.

As to the new award of 100% and being able to return to work...  the first consideration  is what were the conditions that prevented you from working?  Did those condition change or improve just because you received a 100% rating? I would say probably not.   When TDIU is awarded it is because the veteran cannot maintain gainful employment.  I really think the VA can hose  you if you return to work. all they have to say is that your conditions must have  improved  for you to return to work and therefore you did not have entitlement to TDIU .  You could be looking at a situation were you would have to pay money back to the va.

In my case I was awarded TDIU for a 60% back rating.... later I was awarded 100% for lung disease.  If I opted to return to work because I now had a 100% rating for a different condition ,  I have no doubt this would bring into question  the legality of the previous TDIU award.  

Another thing to consider, under bradley v peake it was determined that it was possible for a veteran to retain a TDIU rating and still be rated 100% scheduler .. the reason for this was so that  veterans could be awarded the maximum in benefits and sometimes a veteran could get  SMC S with a TDIU award because they also had a separate 60% rating... but after award of a 100% rating most veterans will not have that extra separate 60% rating.   I do not think the VA is revoking TDIU awards when a veteran later gets a 100% Scheduler  award because as I stated  under Bradly v Peake  the rules  have changes and a veteran can actually have a TDIu and 100% rating at the same time.

If I were thinking about returning to work under this situation the first thing I would do is to make sure that the new 100% rating  was a ticket to work and that the TDIU award had been revoked.... 

[GeekySquid]

12 hours ago, Richard1954 said:

This thread is really confusing

@Richard1954 yeah it got that way quick

12 hours ago, Richard1954 said:

he does not have the additional 60% rating  for statutory Housebound.

after lots of pages that is the outcome.

12 hours ago, Richard1954 said:

When TDIU is awarded it is because the veteran cannot maintain gainful employment.

in general that is true but on TDIU you are still allowed to make up to annual poverty level wages.

12 hours ago, Richard1954 said:

  I really think the VA can hose  you if you return to work. all they have to say is that your conditions must have  improved  for you to return to work and therefore you did not have entitlement to TDIU .  You could be looking at a situation were you would have to pay money back to the va. 

this is where it gets sticky and depends on the individual veterans situation.

In the case of the OP his first listed SC is from 1978, so 41 years. Basic math says he is over sixty. They are not reducing him unless they decide he has committed fraud.

Over and above that he has ratings that are protected by the 10 year rule that add up to 70%. If they did try to reduce that is the farthest they could go down without a real big hassle.

His two other big ratings are protected by the 5 year rule, a big hurdle unto itself.

He was P&T since 2011 under TDIU and is now P&T as schedular (i don't know what year that change occurred.)

P&T means that shy of the someone telling the VA Benefits division you committed fraud in getting a rating they are not looking at you at all.

They no longer check your SS income annually. You no longer file annual  income reports.

12 hours ago, Richard1954 said:

I have no doubt this would bring into question  the legality of the previous TDIU award.  

The VA making a TDIU decision or more correctly a mistake in that decision is not automatically a legal issue for you. Both facets, Total Disability and Individual Unemployable, are variable and subject to change.

Say for example you went to school (on the VA dime or not) and learned to build websites. That is a low exertion trade that can be done at home. as long as your hands are free you can type your knuckles to the bone, with or without an oxygen mask. you could be in an Iron Lung and code websites. Remember all the work standards are based on understanding from 1945. If they ever catch up to 2019 half the veterans who are IU would potentially be screwed.

As TDIU you could only earn poverty wages. But once they said you are 100% Schedular P&T you can earn what you want. You won't be breaking any laws assuming you only earned the poverty wage while TDIU, and you won't be subject to review unless someone rats you out to the VA claiming you had committed fraud.

12 hours ago, Richard1954 said:

under bradley v peake it was determined that it was possible for a veteran to retain a TDIU rating and still be rated 100% scheduler

The application of this is that you remain listed as TDIU and your record is noted to the reasons why. It is to maximize your awards say for SMC(s). The downside here is that you would also retain the limitation on income that all TDIU vets have.

 

12 hours ago, Richard1954 said:

I do not think the VA is revoking TDIU awards when a veteran later gets a 100% Scheduler  award because as I stated  under Bradly v Peake  the rules  have changes and a veteran can actually have a TDIu and 100% rating at the same time.

That is not what Bradly v Peake demands. If for example you are TDIU and getting SMC(s) but your condition gets bumped to 100% Schedular and that bump would take away your SMC(s), then Bradly says you Stay TDIU to keep the SMC(s).

If however you are TDIU for say 70% PTSD and no other conditions. Then the VA bumps you to 100% Schedular. you lose the TDIU status because there are NO SMC conditions that are affected by the change. The TDIU is mooted and so are the limitations on income.

And before anyone tries to bring up the old and wrong claim that MH conditions at 100% make you unemployable for rating purposes. That myth has long been settled. There is NO LAW that says just because you have a MH rating you are treated differently under the rules for 100% Schedular for any other condition. If congress wanted MH treated differently they would have enacted a law saying so.

12 hours ago, Richard1954 said:

If I were thinking about returning to work under this situation the first thing I would do is to make sure that the new 100% rating  was a ticket to work and that the TDIU award had been revoked....

I hundred percent agree with making sure that is done. The VA can be screwball and we all know we can get 10 different answers to the same question with them.

[Richard1954]

I reviewed the rating decision of 6 Nov 2008  that awarded me the 100% for Asthma/COPD  the final paragraph of the letter states:

Review of the claims file shows TDIu was awarded 26 May 1999 with no future  exams required,  Dependant education benefits are effective 26 may 1999.

This was the only mention of TDIU, it was not revoked , in fact the va went out of its way to point out the chapter 38 benefits were awarded based on the TDIU and not the award of 100%, 

They could of severed the TDIU award at this time but chose not too.

Just found this interesting.... 

 

[GeekySquid]

4 minutes ago, Richard1954 said:

They could of severed the TDIU award at this time but chose not too.

they absolutely could have, but the award letter itself is not the only indication. From what I hear from other vets they often do not explicitly state they have revoked a TDIU award when they convert you to schedular.

Based on what you posted, it looks like what they did was make you TDIU P&T as opposed to 100% Schedular.

Just curious, have you gone into Ebenefits recently and printed your Letters? if not try that.

For example my Benefits Summary Letter says

You are considered to be totally and permanently disabled due solely to your
service-connected disabilities:

 I have never been TDIU so I cannot say exactly what a TDIU letter would say, but one of them should mention TDIU. If none due, then you might want to call Peggy and get them to send an email stating you have been made schedular if that is the case.

[Richard1954]

1 hour ago, GeekySquid said:

Based on what you posted, it looks like what they did was make you TDIU P&T as opposed to 100% Schedular

I don't know since the decision I mentioned  6 Nov 2008 above was a final decision concerning effective  dates of the 100% and A&A awards.

However an earlier decision was made on 27 May 2008 which  was based on a CUE  severing a separate award of COPD and adding the COPD to the Asthma award then awarding 100% with incorrect effective dates,  stating the Dependant education was established from Feb 2, 2007, and this rating decision mentioned nothing about TDIU 

when the 6 Nov 2008 decision was issued, it did not revoke the 2 Feb 2007 date for dependant education but  did  mention the previous award of dep education under TDIU

The biggest problem with these letter is there were 4 or 5 different actions because the va made numerous mistakes concerning awarding a separate award for COPD,  and awarding housebound when it should have been A&A, and they twice got the effective dates wrong. None of the award letters corrected every thing in one letter so it got confusing. 

I remember checking the rules about Chapter 35  at that time and at it was/ is legal to have two separate awards of chapter 35 one under TDIu and one under 100% schedular.

I don't need the VA letters for anything but local tax .. I never really paid any attention to the letters since I am also retired from the Army..

one letter states My service connected evaluation is 100% 

In the same letter it states you are being paid at 100% because you are unemployable due to service connected disability  ( yes)

In the same letter is also states The effective date when you became totally disabled due to your service connected disabilities: May 26 1999

In another letter it states:

Your combine evaluation is 100% and mentions nothing about TDIU

I also  have not received or filled out the form concerning employment ( tdiu) since I was rated 100% schedular... 

My guess is they never corrected to letter to remove the mention of TDIU... I will check via iris next week just for the heck of it 

 

 

 

 

 

Edited July 6, 2019 by Richard1954
correct errors