13 replies to this topic

[cooter]

What is the common procedure when your rated TDIU and later awarded enough ratings to qualify for 100% schedular and you want to have it changed.


Coot

[Philip Rogers]

Cooter - I don't know that they do. I believe it's almost impossible to reach 100% schedular, unless you have a single 100% disability. jmo

pr

[Medic]

I believe the VA will do it on it's own - when the time comes for your re-evaulation of TDIU. Personlally I'll leave it alone unless there is a job you are wishing to work currently.

[cooter]

.Thanks PR & Medic. I been wondering about that for a long time and didn't know how they do it, or if they did it at all. Now That I have your guys attention..lol..How do they configure your % ratings for SMC if your TDIU on a single rating? Lets say I am rated at 60-20-10 and was granted TDIU just on the 60%. Will they figure the other 2, "20-10" with the required 60 to make it 160% total? Hope you understand what I'm trying to say...lol


Coot

[Philip Rogers]

Coot - you'll need another 60%, in addition to the 60% used for TDIU. Also they use the combined ratings table, which I, personally, disagree with, especially if the claimant has a single 100% rating. Just another way of screwing the vet.

pr

[cooter]

OK, Thanks John. Just to clarify, will they use my other 20 & 10 for the 60?


Coot

[Philip Rogers]

Yes, your other 20% + 10% will go toward the additional 60%, provided it's only your 60% that is used towards your TDIU.

pr

OK, Thanks John. Just to clarify, will they use my other 20 & 10 for the 60?


Coot

[cooter]

Mucho Gras PR!!


Coot

[john999]

The way I got my "S" was I had 80% TDIU when I got an additional 60% for a single issue. I did have to file a CUE claim to get my "S" since this was around the time that it became known you could get S if you had total plus 60%. If I had not filed I would still be waiting and wondering. The VA has tried to limit their liability in these total plus 60% cases I think. Teac told me about it and he has not got his and Phil has been trying to get it for years since when he got 100% they should have considered him for "S" at that time. They will swear they did, but there is no written proof that most 100% vets were ever considered for S without have 100% plus 60%. Also some DX'es are sign posts for a "S" rating.

[Berta]

They will swear they did, but there is no written proof that most 100% vets were ever considered for S without have 100% plus 60%. Also "some DX'es are sign posts for a "S" rating. "

John is right. That is the initial basis of the CUE claim I won.

The veteran (my husband) was 100% P & T due to SC PTSD.

He had other disabilities that fell under Section 1151 ( now AO disabilties too)

In a 1998 decision the VA failed to consider him properly for SMC. His CVA under Section 1151 was rated (incorrectly) at 80% (changed to 100% 1151 in the decision)

His 1151 IHD, that VA never rated at all in the 1998 decision, and should have rated , was awarded under Nehmer instead of 1151 last month.

.

SMC is a statuatory benefit by mandate.I sent them an excerpt from the VBM as well as M21-1MR to prove that.

It is basic VA 101 that VA MUST consider eligibiity to SMC whenever the disabilities warrant it to be considered.I mean the disabilities have to have been established by VA

The mandate doesnt say they Must award, it says they must consider it , and if they fail to do that, that is a clear and unmistakable error if you can also prove that their error prevented you from attaining SMC.

Edited by Berta, 07 March 2012 - 02:31 PM.

[cooter]

The mandate doesnt say they Must award, it says they must consider it , and if they fail to do that, that is a clear and unmistakable error if you can also prove that their error prevented you from attaining SMC.


,I'm glad you brought that up Berta, thats interesting. So what your saying above is, if in the Reasons & Bases section of the decision letter, it has to state SMC was considered, or stated in another reasonable matter, and if it is not noted, therefore you have credible evidence for an NOD or CUE. Am I to understand this correctly Berta or John.

[Philip Rogers]

coot - that is correct. There should be a statement of "some kind," in the reasons and bases" section, as to why SMC was not awarded. I believe, technically, it is a claim that remains "open" and therefore not a CUE. Remember this is only when the claimant is awarded a 100% schedular rating, for one disability and not a combined total of 100%. I would send the VA a letter requesting the status of the inferred SMC issue claim. jmo

pr

The mandate doesnt say they Must award, it says they must consider it , and if they fail to do that, that is a clear and unmistakable error if you can also prove that their error prevented you from attaining SMC.


,I'm glad you brought that up Berta, thats interesting. So what your saying above is, if in the Reasons & Bases section of the decision letter, it has to state SMC was considered, or stated in another reasonable matter, and if it is not noted, therefore you have credible evidence for an NOD or CUE. Am I to understand this correctly Berta or John.

[cooter]

Thanks PR, and yes I did forget this is only for 100% schedular for one disability. That makes a big difference.


Coot

[Teac]

What is the common procedure when your rated TDIU and later awarded enough ratings to qualify for 100% schedular and you want to have it changed.
Coot

Cooter,

I found myself in this situtation. I was awarded TDIU for a 60% back injury in 1999. In 2007 my asthma/copd was increased from a 60% rating to a 100% rating, The va automatically revoked my TDIU rating. Keep in mind that the VA says that a veteran cannot have a TDIU and a 100% rating at the same time. Also the VA says a 100% rating moots consideration of a TDIU rating. Of course there is nothing that I have found that states a TDIU rating must be revoked on award of a 100% rating... but I'll leave that to another day.

Fast foward to bradley v peake which clearly indicates TDIU holds the swame weight as a 100% rating for SMC purposes......but that is another ongoing conversation.....

Edited by Teac, 19 March 2012 - 05:19 PM.