VETERAN'S APPLICATION FOR INCREASED COMPENSATION BASED ON UNEMPLOYABILITY

[ewsieczka]

So, I was rated 100% totally and permanently disabled back in Jan. 2019. 70% for insomnia disorder, 40% for lumbar intervertebral disc syndrome, 40% lumbar radiculopathy sciatic right lower extremity and left lower extremity, 40% lumbar radiculopathy femoral nerve right lower extremity and left lower extremity, and 20% left/right hip degenerative arthritis with limitation of extension. 

I'm under the impression that I can get additional compensation due to unemployability? Is that correct?   

[brokensoldier244th]

No.unemployable pays the same as 100% already.

[Richard1954]

6 minutes ago, ewsieczka said:

I'm under the impression that I can get additional compensation due to unemployability?

1. Are  your asking if you can be rated under TDIU and get additional compensation?

The only way that you could get additional compensation under TDIU  is to have one  disability that is rated at least 60% that causes you not to be employed , and in addition have a separate disability rated 60%  which could get you SMC S  commonly known as housebound... But it would be very usual  for that to happen when you are already rated 100% scheduler.

2. If your not referring to TDIU but instead mean that you can't work and want more compensation while being rated 100%, I guess you are referring to special monthly compensation (SMC)  you would have to show that you are housebound or need aid and attendance.  or you would have to be rated with loss of use...

But I am guessing at what your actual question is....

[broncovet]

If you apply for tdiu, and are already 100 percent, it will be denied as moot.  

[Richard1954]

 Bradley v Peak  made it is possible to be rated 100% and still get awarded TDIU....   Bradley v Peak held that the VA has an obligation to maximize ratings so the the veteran can receive the highest compensation  possible.

The Court also held that a TDIU rating based on a single disability may satisfy the statutory requirement for a total rating for entitlement to SMC at the (s) rate.  It found that the phrase “a service-connected disability rated as total” contains no restriction to a total schedular rating and no exclusion of other total ratings, such as TDIU.  The Court noted that restrictive language precluding a TDIU evaluation from satisfying the “total” requirement of section 1114(s) was dropped from the implementing regulation, 38 C.F.R. § 3.350(i), in 1995 following a General Counsel opinion that held that section 1114(s) did not authorize such a restriction. 

In considering the circumstances of the veteran’s case, the Court indicated that a TDIU rating for PTSD alone would entitle the veteran to SMC benefits.  Thus, VA should have assessed whether the TDIU rating was warranted on the basis of PTSD alone before substituting a combined total rating for his TDIU rating, as a finding that the veteran’s PTSD is sufficient, on its own, to warrant a TDIU rating, would mean that the veteran is also entitled to SMC.  The Court vacated and remanded the issue for the Board to consider whether the veteran is entitled to a total rating based upon PTSD alone to determine if entitlement to SMC at the (s) rate is in order. 

So requesting a TDIU rating when a veteran has a 100% rating  is not automatically moot. 

Edited October 18, 2019 by Richard1954

[Buck52]

Not acruate Richard1954

but some times a IU claim can be moot but may not be beneficial to the veteran  here is why

BVA Docket# 10 08 469 A  DATE 8 21-12

on June 7, 1999, VA's General Counsel issued VAOGCPREC 6-99, which addressed questions related to whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU and required dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot).

However, in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the U.S. Court of Appeals for Veterans Claims (Court) determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted.

[Richard1954]

1 hour ago, Buck52 said:

Not acruate Richard1954

but some times a IU claim can be moot but may not be beneficial to the veteran  here is why

Actually you are incorrect... 

VAOPGCPREC 6-1999 Withdrawn

VAOPGCPREC 6-99 is withdrawn in light of the subsequent decision of the Court of Appeals for Veterans Claims in Bradley v. Peake, 22 Vet. App. 280 (2010). In VAOPGCPREC 6-99, we explained that section 1114(s) excludes total disability based upon individual unemployability (TDIU) as a basis for establishing a total rating under that section because a TDIU rating takes into account all of a Veteran's service-connected disabilities and that, therefore, considering a TDIU rating and a schedular rating in determining eligibility for SMC would conflict with the statutory requirement for “additional” disability of 60 percent or more by counting the same disability twice. The exclusion of TDIU as a basis for satisfying the total-rating requirement under section 1114(s) holds true in the specific circumstance where a disability relied upon in establishing the TDIU rating would also be relied upon, at least in part, in meeting the statutory requirement for “additional” disability of 60 percent or more. In such a case, consideration of a TDIU rating for purposes of awarding SMC would result in duplicate counting of a disability in awarding additional; compensation.

However, the Veterans Court found there are other circumstances in which a TDIU rating may satisfy the total-rating requirement without resulting in duplicate counting of a disability. The court concluded that it is possible for a Veteran to be awarded TDIU based on a single disability and receive schedular disability ratings for other conditions. Under that circumstance, the court concluded there would be no duplicate counting of disabilities in awarding SMC based on the TDIU rating and schedular rating(s) and read the General Counsel opinion as not barring the TDIU rating where the same disability need not be counted twice, i.e., as a basis for TDIU and as a separate disability rated 60-percent or more disabling. Furthermore, the logic of Bradley suggests that if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100-percent disability rating. This would directly conflict with the holdings of VAOPGCPREC 6-99.

Effective Date: November 4, 2009

Dated: March 4, 2010.

By Direction of the Secretary.

Will A. Gunn,

General Counsel.

[FR Doc. 2010-5008 Filed 3-9-10; 8:45 am]

Edited October 18, 2019 by Richard1954
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