100% but my appeal from 2019 now has a date. Advice Needed

[CavScout19DRecon]

Currently rated 100%. The issues on appeal are lower back and PTSD. PTSD was initially 30% and then when I had my TBI CP it rose to 70%, with an additional 50% for migraines.

I am scheduled for a Virtual hearing at a local office (2 hours away) in a few months.

I really don't want to mess with the PTSD rating as I feel its a fair rating. Should I send the form to cancel that in the appeal, it can only hurt me to continue with that right?

For some background I submitted the appeal in 2019 and I am represented by a lawyer.  Do I have ANYTHING to gain by keeping this appeal?

As always, thank you all for your help. Rock of the Marne.

[Dustoff1970]

Well since you have one what does your lawyer recommend???  Is the virtual hearing a BVA hearing with a judge ????       If your lower back disability is that important to you for a disability rating then you should attend the hearing or you can tell lawyer to cancel the hearing and drop the appeal for both back and PTSD.

If you do receive 100% for PTSD then there is possibility of VA attempting to assign a guardian to look after your finances as well as other important issues. Just saying.

I have been P&T TDIU at 70% Nam PTSD since 1998 and recently awarded 100% P&T final combined rating with SMC-S  due to other high ratings for GERD, Sleep Apnea, Nam Agent Orange heart disease, etc.  but I never even considered asking for increase in my PTSD rating to 100%.  I don't go there.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

[broncovet]

Yes, what does your lawyer say?  

To be sure, 100 percent is "not" the max rating.  

There are many levels above 100 percent called SMC.  (special monthly compensation).  

Generally, I dont recommend withdrawing a claim "unless" there is a compelling reason.  Is it a compelling reason that you already got rated 100 percent otherwise?  Well, no, because you may well deserve SMC also.  

As always, you should review your files and consult your attorney.  Did your attorney think the va may question your competency to handle fianances?  

"Competency to handle finances" is independent of a PTSD or other mental health ratings.  Your doctor generally needs to specify either "competent to handle own fiances" or not competent.  The VA should not insert their own unsubstantiated medical opinion in your case, that you are/are not competent to handle finances.  If the Va did insert "their own unsubstantiated opinion" on your mental competency, your lawyer could dispute this.  

So, the issues are mental competency, ratings, SMC and effective dates.  The effective date is a very big deal, and, my experience is VA usually gets it wrong.  Its a question of "when" you got ptsd, not if.  You may be entitle to a big retro check for an earlier effective date, or smc. I have not read your file, your attorney has.  Discuss it with him.  

I have never met one Veteran who got more benefits by withdrawing a claim, and, there is no evidence "withdrawing a claim will help you in any way.  

"If" the va thinks your PTSD increase is "moot" because you are already 100 percent, then they can write a decision letter to that effect, and, you and your attorney can decide wether or not to appeal that, also.  

[pacmanx1]

10 hours ago, CavScout19DRecon said:

Do I have ANYTHING to gain by keeping this appeal?

An SMC rating is definitely a factor but don’t forget about a retroactive earlier effective date (EED). In my particular case the VA awarded/granted me a combined 100% schedular P & T rating even though I had several claims on appeal.

Making a long story short, by the time the VA/BVA/CAVC finally decided my appeals I was granted/awarded not one but two separate EEDs of TDIU benefits prior to my 100% schedular P & T rating. The BVA first awarded me a partial grant/rating in which I was awarded my first TDIU EED and finally when the BVA reviewed my entire record, they awarded me a second and even earlier effective date of TDIU benefits.

During the process of my appeals, the VA contacted me several times to try to get me to withdraw my appeals and if I did, I would have lost any and all rights to any retroactive payments.

Edited July 19, 2023 by pacmanx1

[CavScout19DRecon]

Thanks for the responses guys.  Lawyer hasnt picked up phone or returned emails.  I went to them first and am waiting to hear back.  I dont care about effective date or anything.  I just dont want the stress of going through all this agian.  The way I see it is I am better off cancelling the appeal and turning this page in my life, but will wait for council. 

[Remisdad]

I'm 90% with IU P&T so I'm getting paid at 100%.  I got my IU in Feb of this year retroactive to Feb 2021.  I had an appeal going since Sept 2019.  I had almost forgot the appeal. June 29 of this year the BVA granted my appeal and today the VARO implemented it. My effective date for IU went from Feb 2021 to March 2017. It's a pretty good retroactive check.

[pacmanx1]

My appeal and both my rating effective dates went back well over a decade and my TDIU effective dates went back well over five years.