Jump to content
VA Disability Community via Hadit.com

VA Disability Claims Articles

Ask Your VA Claims Question | Current Forum Posts Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users

  • hohomepage-banner-2024-2.png

  • 27-year-anniversary-leaderboard.png

    advice-disclaimer.jpg

  • donate-be-a-hero.png

Smc Additional Disability Ratings Are Added, Not Combined

Rate this topic


Recommended Posts

It all boils down to "Congress' intent"! According to law, a Veteran can not be in receipt of disability compensation in excess of 100%, and thus the reasoning for SMC. Had Congress' intent that the additional ratings in excess be combined using the combination evaluation, it would have so stated! CAVC in cases involving questions concerning interpretation of law, references "Congress' intention". There is NO other way to interpret the 100% plus 60%, other than to ADD (not combined evaluation) additional disability ratings according to regulation. Now, according to 38 CFR 3.350 (i), "single service-connected disability rated as 100 percent" (CAVC ruled that TDIU using a single disability constitutes a single 100% rating), and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability is VERY clear! So, if you are rated 100% for MS, then rated 30% for bladder dysfunction due to MS, 30% for gastric ulcer, you would not be entitled as the only disability SEPARATE AND DISTINCT from the 100% rating would be the gastric ulcer rated at 30%. Now, this would get a little muddled (and could well be argued) if the 30% for bladder dysfunction was listed as "neurogenic bladder dysfunction", not mentioning the MS relationship.

Had it been Congress' intent that the additional 60% be combined, it would have stated combined evaluation, instead of disability(ies) INDEPENDENTLY ratable. Congress was/is well aware of the combined rating table, and purposely did not use that language.

Link to comment
Share on other sites

I just did the "numbers" and I am including this in my contention of CUE to the VA:

Had Congress wanted all ratings in excess of 100% would be combined using the combined rating schedule. Since combined rating is determined by remaining “efficiency”…ie. According to combined rating table 99% disability leaves an “efficiency” of 1%, any additional disability ratings would have to be deducted by percentage from that 1%, thus a person with an “efficiency” of 1% who is further rated at 90% + 90% would have an “efficiency” of 0.81%. Theorically, no one would ever be entitled to SMC 100% plus 60% .

Ah, I think it's a home run!!!! Congrats to everyone!

Link to comment
Share on other sites

I just did the "numbers" and I am including this in my contention of CUE to the VA:

Had Congress wanted all ratings in excess of 100% to be combined using the combined rating schedule, they would have stated it. Since combined rating is determined by remaining "efficiency"…ie. According to combined rating table 99% disability leaves an "efficiency" of 1%, any additional disability ratings would have to be deducted by percentage from that 1%, thus a person with an "efficiency" of 1% who is further rated at 90% + 90% would have an "efficiency" of 0.81%. Theorically, no one would ever be entitled to SMC 100% plus 60% .

Ah, I think it's a home run!!!! Congrats to everyone!

Correct language in last post...

Link to comment
Share on other sites

I just did the "numbers" and I am including this in my contention of CUE to the VA:

Had Congress wanted all ratings in excess of 100% would be combined using the combined rating schedule. Since combined rating is determined by remaining "efficiency"…ie. According to combined rating table 99% disability leaves an "efficiency" of 1%, any additional disability ratings would have to be deducted by percentage from that 1%, thus a person with an "efficiency" of 1% who is further rated at 90% + 90% would have an "efficiency" of 0.81%. Theorically, no one would ever be entitled to SMC 100% plus 60% .

Ah, I think it's a home run!!!! Congrats to everyone!

This would be correct as a the recent rating my husband received was 100% for one condition and SMC at the HB rate because he is rated at 100% for a single condition, with

and additional 60% or more rating for one or more conditions (verbatim from the rating decision) .....

I read this as stating they didn't use a "combined" rating schedule for the SMC award. It also stated that "they do not add the individual percentages of each condition to determine a combined rating" (after the 100% mark was reached on one condition standing on its own)

Go for it !

and, thank you for sharing your finds with the rest so they too can follow-up on their claim.

VetsLady

Edited by VetsLady
Link to comment
Share on other sites

Comrades....this is long, but I am submitting to you, part of my CUE letter, and you are more than welcome to use. You may add to, or delete from it, in submitting it for your claim.

38 U.S.C. § 1114(s) does not state disability(ies) “following the combined rating schedule“. The combined rating schedule, according to 38 CFR Book C, Schedule for Rating Disabilities, 4.25 Combined ratings table:

“Table I, Combined Ratings Table, results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. Thus, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled, as shown in table I opposite 60 percent and under 30 percent.”

Once a Veteran reaches ‘0%’ efficiency, it is not possible to rate disabilities in regard to a Veteran’s “efficiency”, otherwise a negative efficiency would be created. 38 CFR Book C, Schedule for Rating Disabilities, 4.25 does not afford negative efficiencies, nor does it allow for disability ratings over 99% which would be rounded to 100%.

M21-1. Part I, Appendix A: SPECIAL MONTHLY COMPENSATION UNDER 38 U.S.C. 1114(s) - 38 CFR 3.350(i) TOTAL PLUS 60% OR HOUSEBOUND SMC Code 48 (change 37)

S-1 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of (*) rated 100 percent and additional service-connected disability(ies) of (**) , independently ratable at 60 percent or more from (date) .

S-2 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of (*) rated 100 percent and being housebound from (date).

*Cite disability rated 100 percent under regular combined evaluation.

**Cite disability(ies) establishing entitlement.

Note that the 100% rating states “under regular combined evaluation, but is NOT stated for the 60% rating.

M21 clearly states INDEPENDENTLY ratable at 60 percent or more, further it notes **Cite disability(ies) establishing entitlement., yet the 100% rating directly states “under regular combined evaluation”. Independently rated, does not imply that the rating must be “independent” of the disability that created the 100% rating, as 38 U.S.C 3.350 (i) directly states, “separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems.” Thus there are 3 requirements: 1) independently rated 60% 2) separate and distinct from the 100% sc disability 3) involving different anatomical segments or bodily systems. Congress knew how to express itself differently, had it intended to permit results to the contrary. Thus, if a Veteran is rated at 100% for MS, receives an additional rating of 60% for dysfunction of the bladder, due to MS, the Veteran meets the first requirement but would not be meet the second requirement under 38 U.S,C 3.350(i) as the 60% rating was not separate and distinct from the 100%. If a Veteran was 100% due to MS, received a rating of 40% for a heart condition, 20% for bladder dysfunction, due to MS, 10% for injury to knee, and 10% for scars, the Veteran would be entitled to SMC(s), as 60% of the disabilities are not associated with the effects of MS, and meet all three requirements as set forth in 38 U.S.C 3.350(i).

I further contend, that if the SMC (s) 100% plus 60% required the additional 60% to be a combined evaluation, as oppose to an INDEPENDENT rating of disability (ies) wording that is used in M21-1. Change 423 Appendix A: “CODE 18A. GRANT-When total disability ratings are assigned in service-connected disability cases under the authority of paragraph 16, of the rating schedule, add, immediately preceding the service-connected combined evaluation, the code phrase.” would also be used in the before mentioned M21-1 (change 37) coding. It is not.

Congress was very careful in it‘s language in respect to SMC evaluations. Since a Veteran can not receive compensation in excess of 100%, Congress created SMCs. No where does it state that ratings in excess of 100% are to be combined using the combined rating schedule. Had Congress wanted all ratings in excess of 100% to be combined using the combined rating schedule, they would have so stated. Not only must we infer that Congress knew how to express itself differently, had it intended to permit the contrary result, it would have made such previsions in 38 U.S.C 4.25. Since combined rating is determined by remaining “efficiency”…ie. According to combined rating table 99% disability leaves an “efficiency” of 1%, any additional disability ratings would have to be deducted by percentage from that 1%, thus a person with an “efficiency” of 1% who is further rated at 90% + 90% would have an “efficiency” of 0.81%. Theorically, no one would ever be entitled to SMC 100% plus 60% .

Therefore I have a well grounded claim for SMC (s)

Link to comment
Share on other sites

  • HadIt.com Elder

WAC-Vet75, I think you've got it nailed!!! Now, we'll have to see how the VA handles it. I wouldn't be surprised if the VA hasn't been misleading claimants by, denying claims, using the combined ratings chart for SMC, much like they mislead claimants for TDIU, by explaining 4.16(a) but not mentioning 4.16(b). It's sad that they do this. Thank you for all your work!!!

pr

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...

Important Information

Guidelines and Terms of Use