90% to TDIU but want to continue to try to work

[Justkeepswimming]

My Lawyers at CCK wants me to file for TDIU. They don’t think they will be able to get me to 100% and I am currently at 90% which was rated recently. I have had a spotty employment past and have had to take time off for back issues and depression but I don’t want to give up on trying to work. 
 

If I am at 90% pre filing for TDIU and get approved to 100 TDIU and land a job where I make more than the threshold, what can I expect my rating to get decreased to? I am only going for remote work as it is all I am able to do with my back issues. 
 

Any information on this subject would be greatly appreciated. Thank you in advance. 

[Rattler]

Welcome to Hadit.

So a couple of questions.

Is the 90% a combined rating?

https://youtu.be/oM7oYzL2DCg?si=dYga2QvJQzk7C3Fj

CCK is a good firm and their advice is mostly solided. You can ask anyone hear who has been through it the last 10% of the 90% is the hardest to get. As the % goes up it takes a high % (40% to 50%) to push you into the 100% extra schulder.

Check out this VA Page on Rating tables.

https://www.va.gov/disability/about-disability-ratings/

It sounds like you are kind of housebound with your back you may qualify for SMC (Special  Monthly Compensation)

If you are at 90% you should be getting Veteran alone (no dependents) $1,998.52 a month. $1,998.52 X 12 =$23,982.24 Yearly.

If you were to file for TDIU should be getting Veteran alone (no dependents) $3,332.06 a month. $3,332.06 X 12 =$39,984.02 Yearly.

If you are married it would go up to $3,517.84 a month. $3,517.84 X 12 = $42,214.08 Yearly.

Because you are what the VA calls housebound because of your back you should qualify for SMC at around $450 a month. this is separate from your other commination. $450 X 12 = $5,400 a Year added on to  your 100% UI. 

I would ask CCK about SMC in addition to your UI 100%

I know most of us Vets would like to work to have something to do. I am a retired IT person with over 30 years experience. With the right employer I probably could work from home, but my time would not go for cheap. Given the math It would be hard to replace the VA commination with a work at home job.

https://www.va.gov/disability/compensation-rates/veteran-rates/past-rates-2022/

[pacmanx1]

We are here to try to help you make the right/best decision for you and your family.

I agree but rattler used the wrong rating chart as veterans’ compensation has increased.

A single veteran rated TDIU or 100% would be getting $3621.95 a month and that adds up to $43,463.4 a year.

A married veteran with no children rated TDIU or 100% would be getting $3823.89 a month and that adds up to $ 45,886.68 a year. Of course, having children would increase your compensation. Also, if the VA grants you P & T, this will grant you CHAMPVA, CH 35 DEA (Dependent Education Assistance) Pay for spouse and children to go to college, Base Privileges and other stuff I forgot. See VA Form 21-8760 21-8760 (va.gov)

Based on your post, there is no way we can see/tell if you qualify for SMC-S.

What you can do which most veterans do is apply for and get SSDI early instead of waiting for regular SSA retirement. With your high rating of 90%, you should consider that you are medically retired. Most of us had to make this decision. The fact that you can get a regular job, but you can’t keep a regular job and only get seasonal jobs should help. I agree that we would really enjoy going back to work but going back to work could further aggravate our health issues.

Being TDIU, you can volunteer or get a hobby that you would enjoy instead of going back to work. You can help out other veterans get their VA benefits. Keep in mind that you could receive both VA Compensation and SSDI Benefits, most veteran do.

To get to 100%, what are your current disability ratings and percentages? I also agree that the VA makes it harder to go from 90% to 100% schedular but it can be done. I did it but when I was 90%, I finally got an additional single 40% for the ratings to hit 95 where the VA rounded up to 100% schedular. 

2023 Veterans Disability Compensation Rates | Veterans Affairs (va.gov)

 

Edited October 11, 2023 by pacmanx1

[Dustoff1970]

Since 1998 I was rated 70%PTSD with P&T TDIU and have over the years researched this topic extensively.  If you loose your TDIU rating due to VARO raters believing you are employable then you should still have the 90% rating in place unless VA raters believe one or more of your disabilities have improved based upon a full and comprehensive C&P exam.

Current and former VARO raters, DROs, and VSOs on another forum said VA raters look for a pattern of TDIU vets working (earned income) in amounts below the poverty threshold in order to evade or avoid exceeding the yearly income limit for TDIU.  In other words deliberate structured employment income amounts and this sends a red flag to them.

The IRS in sharing agreement with VA sends any and all reported earned income amounts to the VA on TDIU vets regardless of how small the amount of dollars.

Regardless of favorable U.S. CAVC court decisions on TDIU vets earned income limits the VA raters may still terminate your TDIU benefits requiring you to appeal their incorrect rulings if they conclude you are capable of gainful employment.

For more information on this read the CAVC court precendent decisions about this subject.

Roberts v. Principi  (2006??), Ray v. Wilkie (2019), 

Faust v. West, 13 Vet. App. 342 (2000)

Feb. 15, 2000 · United States Court of Appeals for Veterans Claims · No. 98-100

13 Vet. App. 342

and I will search for the other court decisions.

Since 2017 I have been upgraded to 100% P&T with SMC-S.  I never attempted any type of work while holding the TDIU rating.  Not worth the risk.

My comment is not legal advice as I am no lawyer, paralegal or VSO.

 

Edited October 11, 2023 by Dustoff1970

[pacmanx1]

Here is my issue, there are some veterans that after they get TDIU granted they then choose to find some type of employment. I know about SGE and ME (Substantially Gainful Employment) and (Marginal Employment). The issue I have is don’t get caught in a lie. Don’t file a claim saying you can’t do certain things and get awarded/granted TDIU and then go out and do those things. These are just examples: TDIU is based on the fact that you can’t be around people (PTSD or Mental Health Rating) and then get a job at Wolly World as a greeter. TDIU is based on a back condition or a (physical condition) and then get a job moving furniture (physical work). Even though these types of jobs, the veteran would not go over the SGE and or the ME, but the work tasks themselves could raise red flags. I am not saying the veteran would be re-evaluated or reduced, I am only saying don’t get caught in a lie.

[Rattler]

I'm bad.

I thought the amounts looked light compared to what I was receiving. packmanx1 had a good suggestion to apply for SSDI. If you paid into social security it could be $1000 a month or more. When you add that to the VA Commination at 100%  It would be hard to equal the benefits with a work at home job.

[Dot09]

Look I get where you’re coming from. You want to work key word want. I too want to work but working for 3 months or seasonal is not consistent. I recommend that you follow the advice given and apply for tdiu and ssdi given your disabilities. It only gets harder and harder as we age. I recommend that you find hobbies to fulfill your happiness as an individual. I wish you the best luck