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SMC-S, Returning to work Question


LanceJoseph
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Question

So I have called peggy more than once, also the DAV. No one can seem to answer my question. I was rated TDIU P&T + SMC-S by a BVA decision in late 2017, I recently filed for an increase on my knees & back which have gotten progressively worse since the last C&P in 2013. From that request of increase I am now rated 100% P&T.

I have been in Voc Rehab for the past two years and trying to get myself to at least a part time position, I am still young and I want to be productive, Not saying those that cant work aren't but when i was volunteering it was a horrible experience, I was bossed around and treated worse than cheap labor and when I couldn't do something I was ridiculed for it (this was at a VA hospital). My question is if I return to work will the VA consider my SMC-S an overpayment?

The DAV says I was given SMC-S due to housebound and also the Over 60% rule (which no longer applies). I was also told that my SMC-S will never be treated as an overpayment because it wasn't my decision on whether I received the benefit or not. I am not worried about losing the SMC benefit, I am more worried about the VA sending me a letter that I owe them a ridiculous amount of funds. Also if there is anyone that can give me some advice on how they would return to work or their experiences? Do I need to contact the VA when I return to work?  On my benefit verification page it has check marks for both 100% TDIU and that I am 100% P&T. 

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Your IU may not be moot after getting scheduler.  Your IU might be used to calculate your SMC.  If you are disabled and entitled to IU due to one condition then you can qualify for SMC without have a single 100% scheduler condition.  If you return to work under this situation you lose your SMC.  Depending on the circumstances, how long and why you were on TDIU the VA may take a dim view of you returning to work.  I am in such a position.  I am 100% scheduler and IU for a single condition and receiving SMC.  I just came off of a medication and might be able to work and might not.  I would never know until I tried.  The only thing holding me back right now is that my education is stale and I would need to retrained at sixty before returning to my old field.  My skills are skills that become outdated.  

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When/if you return to work, the VA will more than likely want to review what contention/rating you are IU for, and then attempt to downgrade it because you are working.

If your work is not considered "gainful employment" (less than a certain amount per year) or is a sheltered environment tailored to your needs, then perhaps it won't be revisited.

If you no longer are eligible for the 60% rule, and are being compensated for SMC-S, I would separate the amount of SMC into savings and not touch it, until an adjustment/correction is made. Be sure to document your correspondence and attempts to communicate the error with the VA. "C.Y.A."

They won't regard SMC as "overpayment" otherwise, unless the argument regarding your claims is - fraud. Then yes, they will attempt to recover anything you stood to gain because of said fraud.

I'm not saying this is your case, but that it has obviously happened in the past.

Edited by awgv001
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2 minutes ago, awgv001 said:

When/if you return to work, the VA will more than likely want to review what contention/rating you are IU for, and then attempt to downgrade it because you are working.

If your work is not considered "gainful employment" (less than a certain amount per year) or is a sheltered environment tailored to your needs, then perhaps it won't be revisited.

If you no longer are eligible for the 60% rule, and are being compensated for SMC-S, I would separate the amount of SMC into savings and not touch it, until an adjustment/correction is made. Be sure to document your correspondence and attempts to communicate the error with the VA. "C.Y.A."

They won't regard SMC as "overpayment" otherwise, unless the argument regarding your claims is - fraud. Then yes, they will attempt to recover anything you stood to gain because of said fraud.

I'm not saying this is your case, but that it has obviously happened in the past.

This is where I am confused though, every one I have talked to (Peggy and DAV) says I am rated at the 100% P&T level, with no future exams scheduled, which makes my IU moot and that returning to work will have no bearing on compensation. I guess I wont actually know until I hear from them. 

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1 minute ago, LanceJoseph said:

This is where I am confused though, every one I have talked to (Peggy and DAV) says I am rated at the 100% P&T level, with no future exams scheduled, which makes my IU moot and that returning to work will have no bearing on compensation. I guess I wont actually know until I hear from them. 

For clarification then, do you have at least one contention rating of 100% alone?

I assume this used to be the case because of the "Housebound" status.

If it was reduced to say 70% but would have 0 impact on your 100% P&T rating, then yeah, I suppose you would no longer be IU, but still hold the P&T.

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If you are 100%scheduler you can work and make what ever you want to   its the being rating IU  is when you are not suppose to be workin gunless under special circumstances.

So if you know for sure they made your IU Moot and granted to 100%scheduler   then you can keep that and work. 

check with the VBA and ask them  to be sure?

they can pull up your file and see exactly how the VA has you Rated.

jmo

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Just now, awgv001 said:

For clarification then, do you have at least one contention rating of 100% alone?

I assume this used to be the case because of the "Housebound" status.

If it was reduced to say 70% but would have 0 impact on your 100% P&T rating, then yeah, I suppose you would no longer be IU, but still hold the P&T.

My TDIU was based on a mental health 70% rating, this made me eligible to SMC-S due to both the 60% rule & Housebound (or atleast from what I've been told). My knees are rated at 40% and back & shoulder at 20% from the most recent increase, this is was brought me to the 100 P&T. 

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51 minutes ago, LanceJoseph said:

This is where I am confused though, every one I have talked to (Peggy and DAV) says I am rated at the 100% P&T level, with no future exams scheduled, which makes my IU moot and that returning to work will have no bearing on compensation. I guess I wont actually know until I hear from them. 

This is where you need to be careful.  Returning back to work will have an effect on your SMC, you need to separate that out from your other payments and hold onto it.  Many people have argued this fact but it stands that you can receive SMC if one TDIU condition is considered to be the reason you are unemployable and you have 60 percent otherwise.  When you go to scheduler your IU is not moot and you go back to work you lose your SMC and therefore it has a bearing on your compensation.  

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Here is the deal:

   If the VA decides to reduce your benefits, to include SMC S, they have to do a proposed reduction letter, and give you an opportunity to "dispute" the reduction with a hearing if you so desire.  

   They are not going to "retroactively" reduce your benefits, unless you committed fraud.  

    Each year, tdiu recipients turn in a form as to how much they earned.  Or, social security will report your earnings to them.  

    IF/when you earn "substantial gainful employment income" which means over about 12,000 per year, then VA can do a proposed reduction of your tdiu.  Again, you can dispute this proposed reduction and give reasons why.  However, if you continue to earn substanital gainful employment, chances are good VA will reduce/remove tdiu.  If your SMC was based upon that, then you could lose smc S.  

    In any case you should not lose it retroactively.  It wouldnt be effective until AFTER VA gives you a proposed reduction letter.  

    Bottom line:  Dont worry about it.  Go to work, be honest with VA but you need not report to VA you are working until you have worked 12 consecutive months.  Then report it to VA.  

    12 years ago, I got married and I was getting pension.  Pension is needs based, because I had little or no income.  When I got married, wifey was a nurse..so I reported to VA that my household income increased significantly.  

     In typical VA style, they did nothing for about 18 months.  They then said they over paid me, and I owed them 6000 dollars.  I contacted debt management center and appealed on these to bases:

    1.  Its not my fault that it took VA 18 months to proccess this.  When I got a check, I assumed that money was mine, like most people who get checks made to them.  Because this was based on VA slowness, its not my fault.   

    2.  Repayment of the 6000 would cause a hardship.  I explained that "my wifes" income is not "my" income.  I dont have a legal right to her income.  

Bottom line, they waived the overpayment and so I had to repay zero.  

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I am not 100% sure on this but TDIU was intended for the Veterans that have a under the 100% rating and their service connected disability only warrants a lesser rating under the 100%  say 60% or 70& to a 90% rating. these can be a combined ratings also.

   if this veterans s.c. disability is the reason he can't work or find any type of employment due to his sc disability   the VA Uses the 38 4.16 (b) extra scheduler to infer the TDIU....for him to be paid at the 100%rate...to help in the well being of his family and or him self..

*((((With exception for a special circumstance need  or being raised with a family business or on a farm.))))

Other wise

WHEN THIS HAPPENS THE VETERAN IS NOT SUPPOSE TO WORK   SIMPLY BECAUSE HE IS DISABLED DUE TO HS SERVICE CONNECTED DISABILITY..

I BEEN ON TDIU P&T SINCE Dec 20th 2002.  I HAVE A 100% FINAL DEGREE RATING WITH SMC-S  for a  90%combined rating =TDIU P&T and a 70% Seperate & Distink  rating  and a 0%SC RATING.

.I've sent in the 21- 4140-1 Employment Questionnaire every year for the last 18 years, this year I sent it in on Feb 3rd  with sign return receipt like I been doing the last 18 years to my respected R.O. ....>   this time I wrote a note and attached it to this form  asking if it was still required I send in this 21 -4140-1 Form In?  the response was   yes sir  you still need to send this form in , if you go back to work please notify your R.O. As soon as Possible.

It was brought to my attention a few years ago Veterans on TDIU did not need to send in this form...the va can check with the SSA to see if your working or not?...they only do this at random checks  this does not mean your not required to send this 21-4140-1 in.

Veterans that are TDIU P&T THAT DON'T SEND IN THE 21-4140-1 is taking a big chance for a proposed reduction letter to come.

Unless you get an official letter from your respected R.O. letting you know you don't need to send in this 21-4140-1     then you don't need to send it in, but you better put this letter up for safe keeping incase you ever need to prove why you don't send in this 21- 4140-1 

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On 2/20/2020 at 2:56 PM, LanceJoseph said:

which makes my IU moot and that returning to work will have no bearing on compensation. I guess I wont actually know until I hear from them. 

TDIU is never revoked unless it was based on fraud,  once awarded TDIu regardless of a later 100% rating you cannot return to work... if you do you could be facing repayment of thousands of dollars.

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