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Keep fighting even after TDIU???

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LanceJoseph

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Good Day Everyone, 

My situation is this, in Jan 2018 the BVA made a decision and granted me TDIU, and SMC-S, along with that there was an increase of two service connected claims to 10% Left and Right knee patellofemoral syndrome and a denial for increase of a service connected lower back pain claim.  I was told by many not to rock the boat but the decision the BVA made 12/1/17 were based on a four year old C&P exam in 2013 and my range of motion both flexion and extension have greatly worsened in my knees and my back pain has become almost a daily battle of getting my body to agree to what I would like to get done.  My ultimate goal is to return to work, as I am a young guy that is currently working with Voc Rehab and my other practitioners to get me to that point. My question is should I keep fighting or just shut up? 

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There are reasons to continue to fight after you receive TDIU.  Know that receiving this you are no longer allowed to work.  If you go back to work you will lose your TDIU and SMC.  This said if you reach 100% you are still allowed to work.  Since you are currently in voc rehab I would try for 100% scheduler so you can work when you get out of voc rehab.  I have heard don't rock the boat too many times and I am still rocking the boat after TDIU and 100% scheduler.  Only you can make this decision though.

Edited by vetquest
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Thanks VetQuest, Being that I am past the one year mark for the BVA decision I will have to file a Supplemental claim and along with this I am sending a statement in support of claim. Below is what I have written thus far. constructive criticism is welcome. 

Statement in support of claim- 

The veteran is filing for an increase on three service-connected disabilities. The first is left knee patellofemoral syndrome (previously rated under DC 5019-5260. The second is right knee patellofemoral syndrome (previously rated under DC 5019-5260). Both are currently rated at 10%. The request for a higher rating is due to limitation of flexion, limitation of extension, a chronic pain. The third and final request of increase is for lumbar strain claimed as (low back). The reason for the request of increase is due to increased localized pain, limited range of motion due to stiffness, inflammation and chronic pain. An increase for both the left and right knee was granted at the rate of 10% on 12/1/2017 and an increase for lumbar strain was denied on 12/1/17 by the BVA, Citation #_________. The 12/1/2017 BVA decision was based on a C&P exam from 2013 and since that exam the above mentioned disabilities have only worsened. A current C&P exam is requested by the veteran.

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My 2 cents.  As you get older and your conditions get worse or other conditions get addon for secondary  purposes you will have to keep this fight going anyway.  

Vwtquest is correct if you return to work you would lose this benefit.  

An example would be all of my conditions.  I have had fibro for years now and apparently this will the to RA, so now I have to go and see the doctor for this.  Also after years of IBS I now have GERD, which I did not even know my doctor said I had until a few months ago.  I also know at some point my left knee will go out and totally affect my right knee.  

What I am saying is there is a laundry list of reasons to keep fighting, because at any point under the 20 year protection they can try to reduce you.  Especially not being scheduler.  

The choice is your, but this is JMO.

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13 hours ago, LanceJoseph said:

I was told by many not to rock the boat

VSO's are known to routinely say this and some veterans repeat it. It is based on the reality that indeed until you are P&T and have passed some milestones the VA can change your rating. It is not until you have been rated for 20 years that the only way to reverse is if YOU defrauded the VA.

That said, ignore those naysayers. By default everyone here believes you told the VA the full truth about your conditions. Based on doing that you really have a limited chance to be reversed. IT is a hard thing for VA to approve.

13 hours ago, LanceJoseph said:

My ultimate goal is to return to work, as I am a young guy that is currently working with Voc Rehab and my other practitioners to get me to that point

TD/IU are actually two different things. We refer to them in a shorthand as TDIU which implies they are joined.

IU can be transitory in the  overall. For example if you have a physical condition that the appropriate equipment can help you overcome the inability to work comes on the market you MIGHT get  full time job and keep it for more than a year (which is the baseline measure the VA must use to roll back IU).

The same holds for MH conditions. With proper training, the theory is you can get better and sustain employment.

Going to school DOES NOT preclude you from getting or being on IU. The VA will argue and many veterans will tell you different but the facts are not on their side and you can search the BVA cases to find those that support the position that going to school is NOT proof that you can sustain a job in a permanent way.

--------

Let me be clear, if you are currently unable to work due to your service connected issues then do file for TD/IU or file for an increase with is also considered a claim for TD/IU or at least is supposed to be.

If you get bumped to Schedular, then you are golden. There is no more of the tracking of your income or employment that happens with TD/IU.

you can work all you want as 100% schedular no matter what your service connected ratings are for.

If you do get bumped to TD/IU DON"T STOP training or college. Once you complete the training / school and get a permanent job. Then you have to hold that job for at least 1 year to have your TD/IU status downgraded, and frankly at that point it would be legally right for that to happen.

Don't let VocRehab tell you that they have to stop your training. They don't and if they try you will then file a NOD against that decision. As far as I know, they cannot stop your training while an appeal is in process. You can take this claim all the way to the CAVC or First Appeals Court. which should give you the time to finish, get a job and prove or disprove your ability to keep a job.

13 hours ago, LanceJoseph said:

SMC-S

SMC(s) has two forms, the first is Statutory and second is physically being limited to your home.

you don't state which you have.

You can get SMC(s) on TDIU.

Statutory means you have a single 100% rating (including TDIU) and a separate set of ratings, not related to the body systems of the 100% rating, that amount to 60%.

If you have Statutory SMC(s) and a 100% Schedular rating working is not a problem.

If your SMC(s) is based on being actually housebound then working outside the house is a problem, but tele-work/remote work/independent work that does not require you to leave home should not be a problem.

you will have to seriously document those exceptions to keep the SMC(s) based on physical limitations of housebound.

TD/IU however means you can only earn up to the poverty level income for a single person that year (and no it does not matter if you are married or have dependents for that particular limitation).

With TD/IU your income will be monitored. If you complete VocRehab and get a job you will have a year to prove you can substantially maintain employment before they reverse your TD/IU award.

In that time you might and I only mean might, need to file for increases which could bring you to 100% Schedular which moots your TDIU as long as that mooting won't affect your SMC(s).

If mooting TD/IU or bumping you to 100% Schedular reduces your SMC(s) then the VA is supposed to leave you as TD/IU to maximize your VA compensation. This could become a problem if you complete VocRehab and get a full time job that pays more than poverty level wages.

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I guess my biggest question is whether or not its worth sending in a supplemental claim without new information? I'm requesting an updated C&P exam for the disabilities cited above. I honestly haven't been seen for these issues on a constant basis because it takes 3 months to get a damn consult. So should I move forward with the supplemental claim for take the next 8 months and try to gather new evidence with outside sources.  I feel like they will just look at my appointments and because im not seen constantly for my knees or back that they will just use that as a basis for denial. 

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