I have been rated 100% since May 2014. My lawyer is telling me to apply for infividual unemployabilty to help with my SSDI case. But im thinkinh this would be counter productive, wouldnt the VA rater be thinking why am I even wasting my time rating for IU when this guy is already 100% P&T? The last thing I want to do is waste someones time and take away from another veteran waiting on a claim. Also if my c&p exam shows i have a tbi and that I need Aid and assistance but I didnt claim niether will the rater automatically square that away?
lawyer wants me to apply for iu for ssdi
- Thread starter lostinfantryman
- Start date
This is a valid concern. Unemployability determination by one government agency would help your case with another government agency, but not prove it. It is worth noting that being granted IU could potentially make you eligible for SMC-S. Bradley v Peake is an interesting case that shows IU has value as a separate determination from 100% scheduler.
The rater is supposed to make a determination on all evidence submitted. You don't have to specifically cite that you believe you are eligible for A&A, only that you believe you are eligible for additional benefits. It makes sense that if someone is performing basic living tasks that you would ask for it though, its hard to blame a rater who makes a mistake in not considering something you didn't raise as an issue. Its not uncommon for appeals to be successful because they fail to, but why put yourself into the appeal hamster wheel if you can avoid it. Not sure if claiming TBI will matter, depends on how that SMC-S issue plays out. SMC in general is a good subject to read up if you're 100%, 100% isn't the max rate they can pay.
They would likely not even review your IU application. They cannot grant both 100% schedular and IU. I understand your lawyer likely wants to use another govt. agency's opinion that you are unemployable, but it simply isn't going to happen. He needs to understand that the VA, by law, cannot rate both 100% schedular and IU. He should probably shift his focus to the fact that 100% P&T is typically a "higher" burden to prove; i.e. showing a significant and exhaustive finding of fact, than an IU finding.
100% P&T should be weighted at least the same as IU (I would guess), and like mentioned above, don't get into an appeal mess if you don't have to. But, look into A&A.
Just my two cents.
Yes they can. I'll agree it doesn't make a great deal of sense as they seem to both be saying the same thing, but they are saying different things and interact with the regulations and statutes different and having both determinations can effect compensation.
SMC-S is granted if you are housebound or rated 100% with additional conditions rated at 60%. Something like an extra 300 a month.
So suppose you are rated 70% for PTSD. You apply for IU and are granted it based on the PTSD. You also have a back injury at 60%. 70% + 60% isn't enough for SMC-S. 100% IU + 60% is. SMC-S would revert back to 100% if you become employed.
38 C.F.R. § 4.16
§ 4.16 Total disability ratings for compensation based on unemployability of the individual.
Currentness
(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.
(Authority: 38 U.S.C. 501)
(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.
38 C.F.R. § 4.16
Bradley v Peake helped clarify what that sentence means within the context of the statutes and other regulations. Total disability is already assigned, the grant of TDIU doesn't change that. The grant of TDIU does however have the possibility of raising a single disability to a total rating, which is what is needed for SMC-S. That sentence only says TDIU isn't important for the 100%, it doesn't say its not important for other contexts.
There are several cases that spell out TDIU and 100% scheduler are separate considerations. I'll paste one example.
Citation Nr: 0947595
Decision Date: 12/16/09 Archive Date: 12/31/09
DOCKET NO. 07-22 925 ) DATE
States in the remaind section:
as has been explained in the introduction section of this
decision, the granting of a 100 percent schedular rating for
the PTSD no longer renders moot the derivative TDIU claim
since the Veteran may still possibly receive SMC. Bradley v.
Peake, 22 Vet. App. 280 (2008). So this derivative TDIU
claim is remanded to the RO, via the AMC, for all necessary
development and consideration - assuming, of course, the
Veteran still wants to pursue this additional TDIU claim even
in spite of receiving a higher 100 percent schedular rating
for his PTSD in this decision.
The VA implemented Fast Letter 09-33 to note that TDIU can be a basis for SMC-S which is what makes it being a separate finding possibly important.
There are several cases that spell out TDIU and 100% scheduler are separate considerations. I'll paste one example.
Citation Nr: 0947595
Decision Date: 12/16/09 Archive Date: 12/31/09
DOCKET NO. 07-22 925 ) DATE
States in the remaind section:
as has been explained in the introduction section of this
decision, the granting of a 100 percent schedular rating for
the PTSD no longer renders moot the derivative TDIU claim
since the Veteran may still possibly receive SMC. Bradley v.
Peake, 22 Vet. App. 280 (2008). So this derivative TDIU
claim is remanded to the RO, via the AMC, for all necessary
development and consideration - assuming, of course, the
Veteran still wants to pursue this additional TDIU claim even
in spite of receiving a higher 100 percent schedular rating
for his PTSD in this decision.
The VA implemented Fast Letter 09-33 to note that TDIU can be a basis for SMC-S which is what makes it being a separate finding possibly important.
Thanks scout that recent post answers my question and helps clarify what I want to do
Thanks Scout. It is interesting to me because we consistently see them ignore the TDIU applications, even though an application for TDIU doesn't need to be requested/filed for it to be considered, when a vet receives a 100% schedular rating. I understand some of the benefits in regards to SMC, etc. but curious how they would actually implement a TDIU finding after a 100% schedular finding. Would they change the classification from 100% schedular to TDIU or leave it at 100% schedular, but incorporate the additions benefits/options associated with a TDIU classification.
I have yet to see it happen so it is something I am interested in learning about. And, thanks for Bradley. I'll have to look through it.
In my opinion, you need to push for the aid and attendance for SMC-T ASAP. Once that is granted, you can use it to accelerate the SSDI claim. TDIU would be nice for the medical documentation, but seeing as you are already rated 100%, it may just provide a smoke screen.
You need to get your case in front of a Administrative Law Judge. It took me 4.5 years to get there, but once I was in front of the judge, it took all of five minutes to get the SSDI awarded.
Have you filed for TSGLI?
You need to get your case in front of a Administrative Law Judge. It took me 4.5 years to get there, but once I was in front of the judge, it took all of five minutes to get the SSDI awarded.
Have you filed for TSGLI?
Yea i have my annual caregiver appointment next week and im gonna have them fill out the aid and attendence vaform its litterally the same questions that are on the caregiver assessment and turn it in before the rater finishes rating my stuff. Who knows maybe ill get lucky and the rater will just rate me based off of my caregiver assessment from last year.
I recieved my updated ratings today and I stayed at 100% additionally my claim for IU was not rated they say it is a moot point so if anyone out there is already 100% schedular there is no point in trying to claim Individual unemployabilty.
Hmm, out of curiosity, were you approved for "Permanent Need for Regular Aid and Attendance" via submittal of the applicable form from your annual caregiver appointment?
Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer."
Best Wishes!
No the caregiver evidence was not the proper form and was not considered. Although the questions are very similiar the annual caregiver paperwork was signed off by a nurse and a social worker, not a dr.
Okay, appreciate your feedback as I shall have my annual VA caregiver re-evaluation in a couple of months albeit we are applying for "Permanent Need for Regular Aid and Attendance" via VA Form 21-2680 at this point in time. Thanks!
Thus, I quite often comment that "possessing well-informed knowledge is truly a powerful equalizer."
Best Wishes!
Anytime, my new doc didnt fill out the 21-2680 for me as she doesnt agree with other doctors that im in need of A&A so that definetly hurt my case, i was also taken off of the caregiver program (after 14 months) after moving va hospitals I now fall under the Denver Va and ive read or heard of atleast 25 other veterans in this area that have been taken off or denied through this Denver program. But I have a bigger problem I now have to prove that I am competant to handle my own finances anyone out there ever been in a similar situation? Any advice?