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I Just Found Out Have Additional Disabilities That Should Qualify Me For Smc "s" Award

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rakkwarrior - what I'm saying is that for the ratings that are used to attain the additional 60% (for the SMC "s" award) they cannot use the combined ratings table(CRT), as it penalizes the veteran twice. Once the veteran is 100% disabled they cannot use the CRT and it is spelled out in 38 USC 1114, specifically. Please see recent posts by WAC-Vet75 and myself for more info regarding SMC "s" awards. Thanks! Perhaps the VA has been doing these wrong all along and it needs to be addressed by the court??

pr

The PTSD Rating cites dates which discuss from X date to X date. There is no CUE here, and while an S award may be forthcoming based on filing claims for.increase in the diabetes related condition, you would have to combine these independently under 4.25 to combine to 60 to get the S. Berta is exactly correct. SMC S awards are pretty straight forward based on disabilities independently ratable in excess of 60 percent. In your case, SMC S could also be awarded on a factual basis consistent with 38 CFR 3.352. "incapacity, physical or mental, which requires care for assistance on a regular basis to protect the claimant from dangers or hazards incident to his or her daily environment."

Mind you, this is a medical determination which will require support from your treating doctors.

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Well yes they are combined using §4.25 in conjunction with § 4.16(a)(1)(2) and (3), and all conditions which are secondary in nature are considered as one disability (38 C.F.R. §3.310). No where in the regulation does it state to set aside §4.25 in combining disabilities except for specific areas of Part 4. I will explain in plain and conscise language, I am not writing a legal argument here, but merely to clarify,

38 U.S.C.§ 1114. Describes rates of wartime disability compensation, and accordingly states, "has additional service-connected disability or disabilities independently ratable at 60 percent or more, or," citing paragraph (s).

Title 38 C.F.R. 3.350(h)(3)(i) effectuates Congress' intent under the following provisions,

(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 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.
"

Title 38 C.F.R. 4.25 plainly states, All disabilities are...to be combined as described in paragraph (a) of this section. The conversion to the nearest degree divisible by 10 will be done only once per rating decision, will follow the combining of all disabilities, and will be the last procedure in determining the combined degree of disability. (Authority: 38 U.S.C. 1155)

As you are service connected independently for PTSD at the 100% evaluation, and you secondary conditions are considered for rating purposes, one disability, referring to, "When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition." citing 38 C.F.R §3.310. They would then be combined for their independent evaluation under § 4.25, which if combined to 60 percent independently, would warrant SMC "S".

In an early Veterans' Court precedent opinion, the Court held, "Regional Office of the Department of Veterans Affairs must follow guidelines listed in the Code of Federal Regulations; it has a duty to ensure that all of the relevant sections are fairly and impartially applied to each veteran's claim in order to ensure that the veteran's claim receives full and evenhanded consideration." Sawyer v. Derwinski, 1 Vet.App. 130 (1991).

In Stezel v. Mansfield Fed. Cir. 2007, the Court held, "The determination of overall disability rating is not a matter of simply adding the individual ratings for each component disability. The overall rating is determined according to the Combined Ratings Table codified at 38 C.F.R. §4.25."

So in any instance, there is no CUE, A request for revision based on CUE is not a claim for benefits in its own right; rather, it is a collateral attack on an otherwise final benefits decision on the basis of a specific allegation of CUE. See Livesay v. Principi, 15 Vet.App. 178-79 (2001) (en banc). To succeed, a claimant must show (1) that the decision was undebatably flawed because either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied and (2) that had the error not been made the outcome would have been manifestly different. See Livesay 15 Vet.App. 165, 173-74 (2001) (en banc). Bales v. Nicholson 22 Vet.App 72 (Table ) (2007).

So unfortunately I think you are wrong, and I believe in this instance, the Court has ruled on issues parallel in nature insomuch as the application of §4.25 is plainly stated. I truly hope this analysis helped clear the air.

Edited by rakkwarrior
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Rakkwarrior, could you please give more information concerning Stezel v Mansfield, so that I can review the actual case? If, that case was not actually referencing the issue we have raised, then it holds no weight in this matter. A Veteran can have NUMEROUS disabilities, none of which would qualify for TDIU, but would allow for 38 CFR 4.25 to continuously be used. A Veteran with numerous 30%, 20%, & 10% ratings, does not meet the basic requirement for TDIU, yet even if the present combined rating reaches 100%, any additional ratings would still be subject to 38 CFR 4.25, until he/she has a qualifying rating(s) for TDIU or a schedular 100% rating. Here is an example:

Veteran is rated for the following:

DC 5301 L 30% DC 5301 R 20% DC 5305 L 30% DC 5301 R 20% DC 5307 L 30% DC 5307 R 20% DC 5310 L 20% DC 5310 R 20%

DC 9440 30% DC6502 10% DC 6514 30% DC 6522 30% DC 6354 20% DC 6260 10% DC 6204 30% DC 7000 30%

DC 7700 10% DC 7800 30% face DC 7801 30% arm DC8018 30%

Not one would quality for TDIU, all the above ratings would only afford a maximum rating of 100%, with any addition ratings, that don't qualify for TDIU or 100% schedular, also being combined to still only reach a maximum of 100% ! IF, such as this example shows, is what the Veteran in question was requesting, then yes, 38 CFR 4.25 must be used, according to law/regulation. Added up, it would be (not including bilateral factor, as this is part of 38 CFR4.25) 480%, but using 38 CFR 4.25 would be a combined rating of 100%

I have seen Veterans with a page full of 10%, 20% and 30% ratings, but they did not qualify for TDIU, and the combined rating is 100%!

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I would like to remind all that rakkwarrior is a member here

and just like all of us and volunteers his time here.

Challenging the way VBA is combining the additional disabilities (+ 60%)

will most likely only be accomplished by way of a Court or OPGC

decision that actually sets precedent.

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I would like to remind all that rakkwarrior is a member here

and just like all of us and volunteers his time here.

Challenging the way VBA is combining the additional disabilities (+ 60%)

will most likely only be accomplished by way of a Court or OPGC

decision that actually sets precedent.

True, it may have to be decided by CAVC, but the more information gathered, in respect to what the VA could present, the better of a case that can be presented on our end. Rakkwarrior, is the best source for us, as he knows what the VA has quoted in past in situations. Seems the issue we have brought up, has not been addressed, and it is very possible that it could be settled, favorably, at a level prior to BVA, if presented in such a way (a well founded argument) that each law/regulation, that could possibly be cited in respect to the claim, is intelligently/rationally refuted, legally, according to the laws/regulations. The RO would have to seek guidance in such a matter, and thus it could be resolved at that level. Do I expect that of the VA, NO, but one never knows!!!

The only way to know if the before mentioned case was referencing this exact issue, is to read the entire case. More information, such as Court, Docket number, etc., is needed to find that case, and I'm hoping Rakkwarrior has the needed information!!!!

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The only way to know if the before mentioned case was referencing this exact issue, is to read the entire case. More information, such as Court, Docket number, etc., is needed to find that case, and I'm hoping Rakkwarrior has the needed information!!!!

It would need to be a Court case.

Here's a link for searching.

http://search.vetapp.gov/

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