tdiu My Smc Math - Am I Close & Is There A "correct" Order?

[jbasser]

I get 100 percent scheduler.

I don't see an SMC.

J

[GlassRose1500]

Since I was previously rated TDIU and that rating would have supported SMC, the increase in rating to schedular cannot negatively impact the veteran's benefits. I'll find the case and put it in... I think Berta shared it with me.

[FormerMember]

Again, you are confusing two sets of metrics. Read §3.350(i). Do not go into the minutiae of M 21. Ignore it. It's like the Mississippi River- it crosses itself too frequently and is useless except for denial rhetoric.

§3.350(i) Total plus 60 percent, or housebound; 38 U.S.C. §1114(s). The special monthly compensation provided by 38 U.S.C. §1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent, 100% refers to a schedular rating. You have 70% which is 30% less than a 'true' 100%. 38 CFR is a compendium of semantics as you can see above in discussions about disjunctive versus conjunctive linkage. The demonstrative operable verb here is "has". After 100%, you will notice the dreaded conjunctive 'and'...

(1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or

(2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.

TDIU is a 'rating' as determined by the Buie vs. Shinseki line of jurisprudence. So is a SMC. While a single 70% qualifies you for TDIU, it is not the same true predicate for a SMC S 100% schedular consideration but it is a decision that you are substantially unemployable and VA agrees to give you 100% compensation. There are many ratings that do not have a 100% ceiling. TDIU requires a base 40% as one stand alone minimum plus an extra combination of diseases or injuries separate and different from the primary disability equaling 70% via §4.25 math. In the alternative, a minimum of a 60% stand alone rating can suffice with no extra ratings at all. The unemployment test in Fast Letter 13-13 is the metric. See also §4.16.

SMC S can only be attained via the 100% schedular route on paper but Buie upset that. After arrival, most can qualify using the Howell v. Nicholson test to get SMC S. VA more frequently insists on the plus 60% unless you have some pretty unique disability like mine (Porphyria Cutanea Tarda). or SC for muscle/spine/cervical injury. Ignore that. If you can prove you don't drive or get out much, that pretty much screams 'housebound'. This line of legal reasoning is still a work in progress in that Buie says TDIU IS 100% for SMC S purposes which is confusing. We don't argue with success and it appears that you are on the far side of 'S' in A&A 1 based on that.

Lastly, you're confused on the bump up wording you mention. When you become progressively more ill, your debilities increase. If you went back and got rated 100% schedular on MDD (which is all I can see you using because it has a 100% schedular rating) you would still have to have an extra 50% combined ( let’s say with some DM2, tinnitus and bad knees bilaterally to get the ½ step bump up from A&A 1 ( L) to L ½. You'd need a genuine 60% of different extras to get the Housebound if you were not A&A 1. Concurrently, you would have to have two 100% schedular disabilities to move from A&A 1 (L) to M. Try to think of that bump codicil in SMC law as an extraschedular rating for being 100% X 2. You have to qualify for the L (or A&A 1 ) in order to even get in the running for the bump up with the extra 50% or 100% above the 100% schedular predicate.

Your personal A&A 1 rating is predicated solely on A&A so your back/legs/etc. have to be service connected for this to work. I've met guys who have about the equivalent of a 1000% rating but a lot of the injuries are not service connected-ergo no SMC S.

Consider SMC a gift of a grateful nation for losing a few too many pieces of your factory-issued birthday suit or being severely injured enough to have lost mobility and ADLs. TDIU is a different path to a 100% compensable rating and will always come up short of a true schedular rating. Once you head down the TDIU path, you're departing from the regular path up the ladder to SMC S. You personally have arrived via the A&A 1 path. While it is functionally equivalent to an L rating for compensation, it isn't a true 'L' rating. Your next logical step as you get much older would be A&A 2 but that will be a long way off. Eventually you will be a true "L" or "M" rating quite possibly with a A&A rider when you get much older.

Lord knows what you stepped on, ran over or crashed to earth in that boogered you up so bad. I’m sorry for you. I know what it’s like, unfortunately. I drove a gurney for a year in a VAMC. I’m on the mend but I’ll soon have the extra 100% which will still only entitle me to the S ‘housebound’ rate of pay for now. When I finally start circling the drain and need the A&A, I’ll be entitled to that bump up to ‘M’. I dread that day and that level of debility.

I'm not seeing the K(s).

VA is a lot of things but they are chintzy on the higher SMCs. Thank you for being so selfless and serving your country. Few Americans hear that call.

P.S. Buie stands for the idea that it makes no difference in what order your disabilities were granted. Thus, if you got 70% for MDD, the sum of your other disabilities , if they were different body or anatomical systems and added up to 60% or more, would entitle you to housebound. You are past that at A&A but didn't pass the M test yet. I like to "reach" with VA so I might be tempted to argue the 1/2 bump to L1/2 based on that slug of ratings you have above and beyond the TDIU. What the hey? You may get famous at the CAVC and supplant Buie for a new interpretation of the 50/100% bump logic. Nothing ventured-nothing gained.

Edited January 3, 2015 by asknod

[GlassRose1500]

The spine, sciatica and legs are SC, the MDD is a 70%, right where it should be. The stuff in blue in my long long long post is from two different court cases where they awarded SMC A&A on appeal with that language embedded in the analysis (that TDIU satisfies 100% in the criteria for A&A). I respect both of your opinions greatly, but am confused by the discrepencies between your thoughts and what I'm reading from appeals cases, and what both the DAV and VBA guys have advised, but I think the real problem is you can't see my entire case. My life. And it's way too much to ask - to ask you to weigh in with only a partial picture. So I'm going to put this down for now - I can't. I can't even look at it any more.

The thing is, my husband is my caretaker, and has no life. I'm early gulf war, so no stipend for him. He's 47 with a lot of things he could be doing with these good years. It makes me sick what he has to give up EVERY day. I have the A&A document from my VA PCP, and they even did an A&A C&P with favorable language. And they send home health aid and a nurse out for 20 hours per week. I have a million THINGS and like, 22 MEDICATIONS in my house to help me make it through each day. I hate every one of those meds and things and I hate ... everything.

On the advice of some folks on this site, the DVA and VBA guys the NOD is in, and in evidence gathering phase. Eventually I'll put what I have in front of a DRO and trust they'll make the call that is according to the law and where my condition fits within it.

[FormerMember]

I vote you NOD for L 1/2. Or go for the 100% MDD and shoot for M. Sorry you are pre 9/11 for Caregiver. We can thank the Wounded Wampum Program for that. Your husband, who has a destroyed life is not entitled to the $2100/mo. stipend simply because of date served. Congress never intended such an absurd result but WWP talked them into it. It's the biggest dichotomy in VA law to date. I foresee you getting it soon as the law is ripe for dismemberment or revision. Since the govt. never rescinds anything, it means we'll all get the caregiver $ some day to get rid of the inherent inequality.

[GlassRose1500]

Don't want MDD @100. Shouldn't be. So I wouldn't ask for it. Would like my life back. Would like my husband, also a Marine to have what he deserves (and I don't mean a stipend, I mean a WIFE).

Thanks for taking a look. I think it's best for me to not care about it or try to understand it any longer, at least for now.

Edited January 3, 2015 by GlassRose1500