Is it safe to put in a claim with P&T TDIU?

[Abyss]

I am rated 70% for PTSD but am paid at 100% for TDIU and am P&T. There are additional claims I could put in for, especially for things like sleep apnea which I have been diagnosed with that could be considered secondary to PTSD.

My concern is that my file is P&T so it will never be opened again. Is it safe for me to put in for new claims, or is there any chance that my P&T could be reviewed? There is no new evidence that contradicts my rating but I guess when it comes to the VA I've learned to play it safe. 

My hope would be to get a schedular 100% if the VA saw fit so that I could try to work without being at risk of dropping down to 70% with no additional income if the job didn't work out which would mean I'd be unable to pay my bills. Thanks for any assistance.

[brokensoldier244th]

Safe as in what? If you’ve gotten better, you might get a reduction in something. If you haven’t the likelihood is greater that you don’t. If you don’t file you get nothing. So it comes down to are you going to file or not, because the only way you ate going to get what you want is by filling. All P&t means is that we can’t call you in for a reexamination on a schedule. If you are p&t for IU it means you already got a rating for whatever that made you unemployable and p&t IUs aren’t just handed out. 

We don’t just go looking for ways to reduce people. If we come across an error in a rating during a review for another claim we are legally and fiscally required to act on it- that’s money that could be going to another veteran. We also can’t cherry-pick conditions out of your file, it’s not cross indexed with table of contents. We have to look through everything to find whatever you are claiming. Your doctors, civilian or otherwise, don’t neatly separate your records into conditions with name tags

[pacmanx1]

Based on your post, try not to be surprised or shocked when you file a claim for sleep apnea that the VA may request a re-evaluation or review of your PTSD claim. Even though you are rated 70% PTSD TDIU P & T, when you file a secondary claim, it is possible that the VA may request a review of your PTSD rating. This does not mean that the VA would try to reduce your PTSD rating, but they may request a review to see if your mental health condition has or has not improved. Keep in mind that whenever a claim for a secondary issue arises, the VA could review the already service-connected condition. It is what it is, as long as you have proof of current medical symptoms then you should not have a problem.

Now trying to get to a 100% scheduler rating with being rated 70% TDIU is very difficult because the closer a veteran get to the 100% scheduler rating the VA math makes it harder to reach. It is not impossible but based on your post you would need an additional 90% or higher just to get to the 95% where the VA math would round up to get you to the 100% scheduler rating.

Now with all that said, I am not accusing you of anything, but it seems that you feel that your symptoms may be better than your last rating since you are considering employment again. What most veterans don’t understand that, if you are rated service-connected TDIU, you might as well accept the fact that you may never work again. I understand that you would love to go back to work to feel productive, but the real truth is, how long could you keep that job/position? Is it really worth putting you, your family and your employer through all that and you can’t keep that job? Please don’t get me wrong. I had to realize the same thing, that it would be unfair on every account because I knew that I could no longer be dependable to work any kind of schedule for employment.

From time to time I post about a veteran that was rated 100% TDIU and receiving SSDI and wanted and did go back to work. The veteran work for exactly thirteen months (13), one month from overcoming their disability shelter and went on regular payroll and had a bad PTSD episode and lost their position/job. The problem was that now the VA and the SSA Office looked at them as being rehabilitated and went back to their old rating not being TDIU anymore and losing their SSA benefits to trying to start all over again filing new claims with the VA and the SSA Office. When you become rated 100% TDIU and then awarded SSDI (IMHO) IN MY HUMBLE OPINION), you can volunteer as much as your disabilities allow but it is not worth giving up the extra benefits that come with being 100% TDIU P & T with CH 35 for your dependents. As stated, the veteran lost all but their 70% regular rating. This veteran contacted me and I explained to them what I am explaining here, it is not worth it (IMHO).

 

 

Edited October 8, 2021 by pacmanx1

[brokensoldier244th]

The employment aspect of this is a great point that Pac makes. I was briefly iu about 6 yrs ago,(for about 4 months) and then was converted to 100% schedular by a subsequent rating  that was pending. During that period of IU before the other rating hit I had to go through this decision. 

A large chunk of my rating is MH related due to chronic pain and residuals of some days feeling really worthless as an individual because of its physical limitations. I have fewer of those days now, but still do. It still took me 4 of the last 6 years to work gradually back up to full employment after I was allowed to. Prior to my 100% rating I had been 70% total, and was working in IT as an engineer. I lost that job of years due to mh, migraine, and physical travel limitations. It had been my job(s) and my college degree path ( voc rehab paid for that so I felt obligated) for over 15 years. I had to come to terms with that at 100% and take a real hard look at what I could and couldn’t do. IT was my identity, and I lost it. Sure I moonlighted on the side, still, but it wasn’t the same feeling of worth. 
 

I was later (few years later) lucky to find the one job for me that allows me to work full time, now, with my 100% rating, due to accommodations, and Covid (being allowed to remote work). Otherwise I’d probably still be part time at 9.00 an hour at the library, in the stacks and away from people, for the 15 or so physical hours a week that I could handle there, or not working at all.
 

It’s really hard to work at the higher percentages, much less full time,  and an almost perfect storm of events has to happen to make it possible. Think about that strongly. 

[pwrslm]

The VA is barred by USC and CFR from going back and re-investigating your disability without cause once you hit 55.  (See IG evaluation here)  Always remember the VA can request a reexamination at any time if there is new, material medical evidence that your disability has gotten better.

Reasons why the VA should not request reexamination:

· Over 55 years old at the time of the examination, and not otherwise warranted by unusual circumstances or regulation

· Permanent disability and not likely to improve

· Disability without substantial improvement over five years 

· Claims folders contained updated medical evidence sufficient to continue the current disability evaluation without additional examination

· Overall combined evaluation of multiple disabilities would not change irrespective of the outcome of reexamining the particular condition

 

On your side, the one thing that says you should file more claims is that once you get older, and if by chance conditions that should have been secondary service connected (like sleep apnea) are a primary cause of death, it would insure that your spouse gets DIC. If you skip it and you later develop a pulmonary condition related to OSA, and die, your spouse would be left hanging (if your rating has not held for 20 years).

Without new evidence showing why your rating should increase, you may be walking on shaky grounds. Alternatively, secondary service conditions do not have to be all you are dealing with. You may have had a problem with your knee's or back while on active duty that are kicking in and should be primary service connected. By all means, get them added to your ratings because they are all part of your case. Bad knees can cause obesity and obesity can cause a whole slew of secondary conditions that should all be secondary service connection. If you have bad knees the VA has no business opening an exam for your TDIU PTSD. I ran into this (similar) and started pounding the phone telling supervisors at the VA 800# that I should not have a new C&P in violation of their own policy and USC/CFR. If they try to violate the rules/laws, you will win in the end.

§ 3.327 Reexaminations.

 

[Mr cue]

Well my opinion on doing new claims after tdiu pt  when you are not 20 year protect.

Is you are now put your disability rating in the hands of these private company that do the comp exam now.

You can't get a copy of the exam before it is put in your record and you might not get it until they reduce your rating.

Now you are in for a fight.

That is my opinion.

I put in my claim for smc benfits I got my record at the court.

There were 3 request for a reduction everyone stated 20 year protect.

If you are tdiu pt I would let it go until 20 year protected

Look on the bva site a see how many rating reduction are on appeal.

[brokensoldier244th]

YES- OSA can kill you slowly. Over time it strains your heart, it strains your brain/cognitive function, it can directly impact daily activities to the point of causing physical harm, and untreated your 02 sats drop slowly in your sleep and you can eventually just not wake up. 

 

OSA is no joke. I was Dx'd about 10 yrs ago, and it was a partial driver for some of my MH issues, though more it just made them worse, plus I was falling asleep at work and while driving, and just while sitting in the living room with the wife and kids *poof...* missing 15 minutes all the time. I couldn't remember routine things I did the day before, and sometimes in the same day- sometimes meds. It was a running joke for a few years leading up to my diagnosis, but it sucked hard because I couldn't help drive on long trips, for example (my wife's family is about 6 hours away), and it caused some marital strife there  until we knew what was going on and why. 

 

CPAPS are expensive, a thousand or more. Masks and tubing every 4-6 months, there is another hundred or so. Its much better to get it covered by VA. This means through VHA (unless you are already being treated- if so, thats great! ). They'll provide the stuff for you regardless of SC, especially since you are already 100% (IU). 

Edited October 8, 2021 by brokensoldier244th