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#1 gloworm

 
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Posted 06 August 2012 - 06:46 AM

CURENTLY RATED 70%, 30%, 30%,30%,10% - MILITARY SERVICE

100% - 1151

SENT CLAIM FOR IU FOR MILITARY SERVICE CONNECTION - THEY STATED: ENTITLEMENT TO INDIVIDUAL UNEMPLOYABILITY (IU) IS MOOT GIVEN A SCHEDULAR 100%.

I HAVE RESENT CLAIM IN FOR MILITARY SERVICE CONNECTION FOR IU DECISION ON MILITARY SERVICE - BASED UPON 70-30-30-30-10 RATINGS. I HAVE BEEN ON SSDI FOR 5 YEARS. I HAVE INCLUDED IMO. C&P EXAMINER STATED THAT I WAS ABLE TO DO A SEDENTARY TYPE JOB???? I HAVE BEEN UNEMPLOYED FOR 9 YEARS.

NEED ADVICE ON HOW TO WIN IU BASED ON MILITARY SERVICE CONNECTION????

#2 Berta

 
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Posted 06 August 2012 - 07:08 AM

You posted:


“SENT CLAIM FOR IU FOR MILITARY SERVICE CONNECTION - THEY STATED: ENTITLEMENT TO INDIVIDUAL UNEMPLOYABILITY (IU) IS MOOT GIVEN A SCHEDULAR 100%. “

Do you mean an extraschedular 100% rating?

But you also stated:

“100% - 1151”

I would agree with the first statement , that TDIU is a moot issue when 100% rating has been awarded.

However, if you have a 100% Section 1151 award, for an additional disability, that is NOT a moot issue.

I won a Section 1151 claim in Jan 2012, and the VA correctly awarded the 1151 comp separately from the SC IHD AO comp, regarding my deceased husband's issues.

Part of his past award was 100% SC P & T for PTSD.

They had to pay 100% additional for 6 months under 1151 and then residuals under SMC for a 1151 stroke he had.


Section 1151 comp cannot be offset from direct SC comp.

I can dig out the regs for that but maybe I am misunderstanding this.

Can you clarify your post?

Did you FTCA them as well? Is the 1151 100% is being recouped as a FTCA offset?

They can legally offset any FTCA settlement unless the 1151 also is (or becomes) direct SC.

Is the 1151 100% ,in fact, for the same SC 100% disability?

If so there should be no offset but you might have to fight them over that ,as I did,regarding another AO claim,
with established VA case law.


We need more clarification on these issues.

Edited by Berta, 06 August 2012 - 07:11 AM.


#3 carlie

 
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Posted 06 August 2012 - 07:13 AM

CURENTLY RATED 70%, 30%, 30%,30%,10% - MILITARY SERVICE

100% - 1151

SENT CLAIM FOR IU FOR MILITARY SERVICE CONNECTION - THEY STATED: ENTITLEMENT TO INDIVIDUAL UNEMPLOYABILITY (IU) IS MOOT GIVEN A SCHEDULAR 100%.

I HAVE RESENT CLAIM IN FOR MILITARY SERVICE CONNECTION FOR IU DECISION ON MILITARY SERVICE - BASED UPON 70-30-30-30-10 RATINGS. I HAVE BEEN ON SSDI FOR 5 YEARS. I HAVE INCLUDED IMO. C&P EXAMINER STATED THAT I WAS ABLE TO DO A SEDENTARY TYPE JOB???? I HAVE BEEN UNEMPLOYED FOR 9 YEARS.

NEED ADVICE ON HOW TO WIN IU BASED ON MILITARY SERVICE CONNECTION????


You are already rated and compensated with an evaluation of 100
percent scheduler.

They are not going to rehash this and change your status to IU as that would be
redundant, moot, no longer an issue for discussion or debate.

Question: Why in the world do you want them to rate you as IU ?

#4 mekon1971

 
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Posted 06 August 2012 - 08:56 AM

If he got the 70% rated TDIU then added the other %'s he could get homebound 100+60?

#5 Berta

 
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Posted 06 August 2012 - 09:36 AM

Yes=that is a good point Mekon----TDIU plus 60% (not combined) for one additional separate disability-

or, as he stated, 100% under 1151 plus 60 % SC for independent disability would also warrant SMC S and vice versa-
as in the award I got in January---



Gloworm made a few posts here in the past as to FTCA/1151 issues so I hope he will clarify for us his actual rating under both SC and the 1151 claim.

#6 rpowell01

 
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Posted 06 August 2012 - 10:29 AM

Okay I think I understand now. He wrote "CURRENTLY RATED 70%, 30%, 30%,30%,10% - MILITARY SERVICE" which is = 90.739% Or did he mean 70% overall with 30%, 30%,30%,10%?

He also has a 1151 at 100%...

So if Section 1151 claims are against any veteran hospital, physician, nurse or general health care provider who has committed medical malpractice. If the VA concludes that under Section 1151 that medical negligence occurred, the affected service member receives compensation. If the service member dies during medical treatment, the veteran’s children, spouse, other family members or estate receives the benefits.


Read more: http://www.vabenefit.../#ixzz22mfOGG00



These are two different types of claims and are not related, correct? If so then I don't see how this claim would be "moot". I understand about being 100% based on the scheduler and 100% based on IU, you can't have both. Just read that in the letter I posted...



#7 gloworm

 
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Posted 06 August 2012 - 08:18 PM

Yes. They r two separate claims. He was rated 100% on 1151. He has DSC ratings from Vietnam of 70%, 30%, 30%, 30%, 10%. He has Aid & Attendance and SMC award. Concerned about FTC claim and how this would affect any of this with offset.

#8 broncovet

 
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Posted 07 August 2012 - 05:29 AM

I will add my 2 cents.

Berta
I respect your opinion and am very pleased about your statement about the 100 plus 60, where the 60 is added not combined. There was much discussion about this a year or two ago, and I was unaware the courts had decided that the additional 60 was added not combined.

Carlie...

Why would he want to be rated IU if he was 100% scheduler? Well for the SMC, of course.

I agree with gloworm..if he was eligible for TDIU, but denied because it was moot because he was 100% schedular, the "moot" part does not take into account the potential for SMC under Bradley vs Peake. So, yes, it would appear that gloworm could appeal that TDIU was moot, because if he was rated TDIU he would then be eligible for SMC under Bradley.