WAC-Vet75

I have ratings above 50%, but unless you get a 100% schedular rating, theoretically, using the combined rating schedule 38 CFR 4.25, you can NEVER obtain a rating higher than 100%. If, you had 4(or more)- 70% ratings, they would all be combined to give you 100%, nothing more. To receive SMC, unless you meet the LOU/LO, blindness, etc., or you have ONE single 100% rating, which could be TDIU. If you never receive TDIU for any of your 4(or more)- 70% ratings, you would not be eligible for SMC(s). This goes to the heart of this debate.... what authority (law/regulation) does the VA follow to allow ratings, in excess of 100% (0% efficiency according to 38 CFR 4.25) to continue to be combined? Basic compensation ratings are from 0-100%, rated according to average impairment of earning capacity, then combined using 38 CFR 4.25 which states "results from the consideration of the efficiency of the individual". Some of us contend, that ratings in excess of 100% are no longer subject 38 CFR 4.25, as 1) it is physically impossible for a human being to have an efficiency less than 0%, 2) no authority (law/regulation) provides for ratings over 100% to be combined. The authority (law/regulation) cited, by VA employees, for the use of 38 CFR 4.25 is 38 CFR 3.321 General Rating Considerations. This specifically defines ratings as such, "The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability. (b) Exceptional cases(1) Compensation. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional provison that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience." With the rating defined, we now look at 38 CFR 4.25, which specifically defines what combination ratings are, " 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." It further goes on to give an example of exactly HOW this is done, "Thus, a person having a 60 percent disability is considered 40 percent efficient. Had they not defined disability ratings as "the average impairment in earning capacity" then define what a combined rating was, "results from the consideration of the efficiency of the individual", then there would be a good case against our contentions. With both laws/regulations giving the definition that they do (especially with the example stated in 38CFR4.25), someone with a knowledge of the English language, and basic knowledge of law, would come to the same conclusion. I, personally, feel 38 CFR 4.25's definition with the example they give, is the most damning evidence against combining ratings in excess of 100%.

Even if I knew how to play golf, it would be way too physical for me now....... Could you just imagine getting paid for something you love to do, and have been doing for free?!!! I would be a NSO in a heart-beat, as the service organizations do not charge our comrades to fight to get them what they rightfully are entitled to. I had a well-know attorney here, and former JAG Officer, ask to hire me as a consultant on Veterans cases, but I find charging Veterans to get them what is rightfully there's to be repugnant. The Service Organization NSOs that I've known, were all veterans themselves. The very first NSO I met, in Philadelphia (1970's), O.J. Brookes, DAV, impressed me so much, that I've based my "method" of research on him. He left NO stone unturned. I may not have the knowledge/training NSOs have, as they have training, but I put my heart into each case I've worked on, and learn all I can concerning their medical issues, so as to get as much for them the law/regulation allows. I can understand how Rakkarrior felt, when he had to "let down" his friend, as I have a Vet right now, that wants to fight a condition, that even, "reasonable doubt" makes it difficult to fight. I intend to do my best in wording that part of the claim, but even with my optimistic views, it will be a miracle to win, and I told him so. My Vets also understand my conditions, and realize I can be very limited as to how fast I can work their claims. I have already had to advise some how to do their claims, because I was just physically unable to do it myself, at the time. Sorry, I just realized I hijacked this thread......

I'll take the job!!!

Rakkwarrior... gee, what a bummer! I was getting ready to get my resume in order, "educated disabled Veteran, able to work an hour here or there on good days, can't be stressed, must be able to take naps, given time off for VA appointment, must work from home, can use telephone (when I don't lost my voice)....... First job opportunity, fitting with my physical limitations, I was going for!

Wow, I have two years to go.... then, if I can find a job, that I can do at home, when I'm able to actually work (due to other conditions), that doesn't have any time constraints to it, isn't stressful, I'll have it made! Wonder if I can get overtime, bonus', 401K plan?

."Additionally, while the total disability requirement must be met by a single disability, the 60 percent requirement may be met by applying the combined rating of the Veteran's remaining disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008) (noting that "combined ratings to satisfy the second requirement but not the first"). " http://www4.va.gov/v...es3/1026621.txt . Are they saying if you have 100% and not TDIU then the VA can combine additional SC to meet the 60 for the 100% plus 60 SC "S" award? Yes, and this is where part of our SMC "question" comes in concerning combining the additional disabilities as oppose to adding the percentages. Anytime a 100% rating shows up, the VA is suppose to look for eligibility to SMC. Since the premise of TDIU says Total disability due to individual unemployabilty-should TDIU vets file for and request 100% instead of the TDIU? TDIU is awarded when the disability(ies) do not meet the criteria for 100% on the regular schedule, but severely impedes the Veteran's ability to obtain and maintain employment. . Example: A Veteran is rated 70% for Chronic Adjustment Disorder, because he/she does not meet the requirements, gross impairment in thought processes or communication; persistent delusions or hallucinations, etc for the 100% rating, but due to obsessive rituals, can not be employed, or can not maintain employment. I have always had the feeling that SMC can be manipulated by the VA to their favor- and maybe the key to that is in fact that many TDIU vets should be 100% vets but as long as they are deemed TDIU they would need qualify for additional independent 60% SC for "S" unless they can meet the housebound requirements for "S" instead. In all honesty, I personally feel any Veteran who is TDIU, satisfying the requirement for permanent and total, should be awarded 100%, total. I often wonder how a Veteran rated TDIU, P&T, after 20 years is rated? Do they just always remain TDIU, even after the 20 years? The VA, as of now, just keeps combining all additional disabilities, until SMC is awarded, if ever. I'm sure if I'm mistaken, someone will be kind enough to set the record straight........

Rakkwarrior.... thank you for your insight. I REALLY appreciate you responding. You are giving me an opportunity to voice my thoughts on this matter, and offering your insight of the system's workings. I (and others) have been unable to find any reference, law/regulation, regarding the issue of "what math" is to be used in regard to ratings over the 100% level, other than 38 USC 3.350. Even the VA's own manual, offers little to clarify the issue at hand. M21-1MR, Part IV, Subpart ii, Chapter 2, Section H (I am referencing this for those that wish to look it up, as I'm sure you are familiar with it), states, "Special Monthly Compensation (SMC) is an additional level of compensation to veterans (above the basic levels of compensation payable based on disability ratings of 0 to 100 percent) for various types of anatomical losses or levels of impairment due solely to service-connected (SC) disabilities" Further, in M21-1MR (same subpart, etc) (f) has "Showing Entitlement to SMC in Rating Decisions Entitlement to SMC must be reflected in the Coded Conclusion section of the rating decision by noting entitlement to SMC and statutory awards immediately following citation of the combined evaluation of all service-connected disabilities (if more than one exists) listing any anatomical loss as the first entitlement in order of preference over all losses of use, and citing separately each additional specific disability if entitlement under 38 USC 1114(k) is shown for more than one anatomical loss, or loss of use." I realize that is a manual that the VA uses, but it does reference "basic levels" of compensation, and I believe this goes to the heart of the matter. The second part that I reference, "combined evaluation of all service-connected disabilities), is where, I believe, a discrepancy exists. Though the language is clear, it does not take into account 100% plus ratings. How does a 100% rating, combine with additional rating of 20% & 10%? 38 CFR 4.25 only allows for a 100% rating resulting in an efficiency of 0% (using rounding when applicable..ie, 99%). I have been unable to find the authority (law/regulation) for ratings in excess of 100% to be combined in accordance with 38 CFR 4.25. Reading 38 CFR 4.25, one can understand (may not agree with) the premise of efficiency percentage. Theoretically,as your example shows, unless a Veteran has a single rating of 100%, according to 38 CFR 4.25, and the above referenced M21 section, a Veteran with multiple disabilities, can never obtain a full 100% rating, as each additional rating will be placed against the remaining efficiency. TDIU may well be awarded for a single disability rating, but any and all additional ratings are then deducted, percentage wise, from the remaining efficiency. This brings us right back to, under what authority?! I believe PR is correct, in his contention, that combining ratings in excess of 100% is penalizing the Veteran. Law/regulation allows for ratings under 100% to be combined, 38 CFR 4.25. The "fairness" of this combination of disabilities is moot, as it is a matter of law/regulation. 38 CFR 3.322 specifies "The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impediment in earning capacity in civil occupations resulting from disability." 38 CFR 4.25, is then used in calculating, what the over all percentage that (those) impediment(s) of earnings would be. Once total disability is established, ie. schedular/extra schedular, additional disabilities can no longer serve as an impediment to earnings, but can serve as an impediment concerning quality of life. Bradley v Peake did not address the issue of combining ratings in excess of 100%, only addressed 38 CFR 4.24 in respect to how multiple disabilities, from one disease entity, would be rated separately. I do not find your post, in any way, discouraging, on the contrary, you have provided valuable information!! lmao.... I started this post this morning, after reading Rakkwarrior's post.... Gee, I LOVE this POS computer!

Personally, I'd love to have an EMG done, to see what is happening! I've not researched it in respect to MS, but I'd like to "see" what I've been feeling (does that make sense?) In that respect, I am a very visual person.... I had a special vision test done years ago, when I kept complaining that I had "gray" areas... it was so cool to actually see the dots where my vision was "grayed"! There it was, right on paper!!! I'm not happy that I have those gray areas, but to have a machine show them so others could see, was friggin awesome! Ryguy, you have to make the decision, do some research, find out all you can about EMGs, then you can make a well informed decision.

Comrades, thank you, but we still have a long way to go..... I still have a LOT of cases to go over, a lot of searches to do. If, my research shows inconsistencies in these ratings, the VA will have to address the issue, sooner, than later. It is always better to enter a battle with extra ammo, extra weapons! The more Vets who read boards like this, the more claims are going to be filed, the faster the VA will have to address this! I have to say it will be VERY interesting to read how the General Counsel addresses it in their VAOPGCPREC ! They can not just say, "this is how we always did it", I do believe they will have to address each law/regulation, as I have, but we are talking about the VA! As for the other board, I believe they saw my challenge in a different light (adversary) than how I meant it (looking for correction). Even here, I want someone to go over it all, and show me where I am wrong. I want to know what I have not addressed, did I miss something, is there another law/regulation that could be applied, making my contention incorrect..... I come from a family that LOVED debating, and when we debated, we always challenged the other point of view among us, so that we could learn from mistakes. I am so exhausted, but so alive right now! I feel (in my mind) like a kid again... now if I could just get my body to cooperate with my brain!

Here is an update, BVA case, that should be used with the "well founded argument"......I posted the wrong link... looking for it now! UGH. Ok, here ya go http://www4.va.gov/vetapp10/files3/1021990.txt BVA:Citation Nr: 1021990 Decision Date: 06/14/10 Archive Date: 06/24/10 DOCKET NO. 03-25 209 "For purposes of 38 U.S.C.A. § 1114(s), an award of TDIU may satisfy the 100 percent schedular requirement if the TDIU evaluation was, or can be, predicated upon a single disability. VBA Fast Letter 09-33 (July 22, 2009). See Bradley v. Peake, 22 Vet. App. 280 (2008). However, no disability can be considered twice in calculating the percentage requirements to ensure that the prohibition against pyramiding contained in 38 C.F.R. § 4.14. Thus, the additional service-connected disabilities ratable as 60 percent disabling must be separate and distinct from those warranting the TDIU evaluation. The Veteran is currently service-connected for PTSD, rated as 70 percent disabling effective February 12, 2004; status post left knee replacement, rated as 100 percent disabling from October 19, 2004 and 60 percent disabling since December 1, 2005; residuals of left common peroneal nerve injury, rated as 10 percent from May 15, 1970, 20 percent from June 10, 2002, and 40 percent from July 27, 2005; left knee subluxation rated as 10 percent disabling from June 10, 2002 to October 19, 2004; organic brain syndrome, rated as noncompensable from April 1, 1980 and 10 percent disabling from June 10, 2002 to February 12, 2004; scars of the left eye brow and eyelid, rated as noncompensable from May 15, 1970 and 10 percent from April 17, 2003; and vertical diplopia of the left eye, rated as noncompensable effective June 10, 2002. At the outset, the Veteran has been awarded entitlement to TDIU, effective June 10, 2002, primarily based upon his service-connected acquired psychiatric disorder. Effective June 10, 2002, the Veteran also met the criteria of having additional service-connected disability independently rating at 60 percent or more (left knee degenerative joint disease rated as 30 percent, left knee subluxation rated as 10 percent, and left common peroneal nerve injury rated as 20 percent). As such, the record establishes the Veteran's entitlement to SMC benefits under 38 U.S.C.A. § 1114(s) effective June 10, 2002." Organic brain syndrome, is rated under mental conditions, and thus can not be used in determining entitlement, under 38 CFR 3.350(s) as it must be separate and distinct, involving different anatomical segments or bodily functions. As the requirement states, "single disability" independently ratable, the BVA noted that the TDIU was "primarily based", meaning that the TDIU rating requirement could well be based on just the single, 70% rating for PTSD. This BVA decision based the additional 60% rating on independently ratable percentages, as required according to 38 CFR 3.350, and not erroneously using the combined rating schedule, for which there is no legal basis to use, in ratings over 100%.

Broncovet, I'm shocked... how could you write such a disgusting post? Gee, the VA is our friend... they are there to help us!! Ok, I think I have to change my depends now.....lmao You forgot to mention the shrimp dip, the politicians can use at their State dinners!! They have to save money somewhere so that they can have respectable socials!! Why not off the back of the Veteran? Did we not give them a blank check when we enlisted/were drafted?

It will only be there IF your VARO inputs one there. I have not had one show up, called the 800# about it, and they had me get in touch with the ebenefits website people...... The ebenefits people told me that it is the responsibility of the VARO to input that information. I called the 800# back, told them what the ebenefits people told me, and was asked if I wanted them to mail me out that information... round and round we go! I can tell you.... though I've been 100% P&T TDIU since 1993, whenever the VAMC or clinic looks at their screens, they only show 90% combined. I've had to show my DOD card to "prove" I'm 100! I want to SEE my ratings on ebenefits, but can't get them to post it. Good luck to you!

That's a new one for me... a permanent increase? The VA does keep us "entertained"!

The Vets who are disfigured..... they can and I'm sure many are, rated 10% for scars.... that could well be one of the reasons Congress worded the regulation as they did. 100% PTSD, 10% scarring r leg, 10% scarring left leg, etc. How they came up with the 50%, and 60% is beyond me, unless they figure a person's quality of life loss, most significantly starts at a 50% disability(ies)? Would be interesting to find out how they came about the percentage. I may be wrong, but I do believe that I read a BVA case where a field C&P was done at a Veteran's home, due to him being housebound. Gee, now I'm thinking about housebound Vets that are alone, no family, they either have to rely on friends/neighbors, or pay someone to do their errands....

Broncovet.... thank you. Your post brought tears to my eyes, really. It took me a bit of time to address each issue, forgetting what I wrote in the previous ones, so you are correct, I do over use "clearly". Rereading it, I had to laugh...,, It's almost like when I try to say something (speaking), and I end up only repeating the same word, ugh. This has become very personal for me, not because of my claim, but because I realize how many others (many no longer with us) are/were denied what is rightfully due them.

Broncovet... I believe you are correct. Many of the responses I've gotten leaves me scratching my head... "The VA has always done it that way". "that's how the VA trained us", "the regs don't say not to combine (then they quote 38 CFR 3.323)", you get this online, and via the 800#, and the worse one, "Given the existence of the EAJA an unscrupulous attorney might jump on your ideas as a way to gouge a few bucks out of Uncle Sam's taxpayers", Do people believe we want these disabilities? I would GLADLY give back everything, plus, if they would give me back my health, all my lost years due to my health, the time my family lost out...... as I'm positive most, if not all of you would do the same. Does the VA look at us as such low-lives, wanting to "gouge a few bucks......"? Many of us have had to fight for every benefit, though the law entitled us to them. We are the reason the VA employees have jobs! Let one of them trade places, health wise with me, and I would be thrilled to be able to be amongst other adults, in the work force. Each year when the VA sends out that paper (TDIU even P&T gets them) asking if you are working, you are once again reminded how worthless, unproductive you are in society. I DID NOT ASK FOR THIS, as none of you did either!

I called to call Ken Carpenter and was told that I had to have a phone conference with Kathrine. Berta, technology is AWESOME, technology is also FRUSTRATING at times! I can not wait until I get the replacement for this laptop....

Wow, didn't realize so much was going on back here! I can say, I've started quite a "heated" conversation over on the other board :D They are trying to bring up 38 CFR 3.323, but that brings you right back to 38 CFR 4.25 and the argument on efficiencies less than 0%, which would be negative efficiencies! I just want to warn everyone that I have a POS laptop that is part of the NVIDIA class action suit, so sometimes it's difficult to respond... my monitor blacks out, my cursor disappears, the whole thing freezes, it reboots on it's own, etc. I don't want anyone thinking that I'm ignoring posts!!! Just wanted to add... seems it's VA employees that are most upset over this... I wonder why? Also, Vike 17 closed the thread to further discussion! Did a nerve get struck???

First off, I apologize for taking so long to composing this, and also for the length of this post. I felt it necessary to address issues, concerning this topic, of adding additional disability ratings in excess of 100% for SMC rating, instead of using the Combined Rating Schedule. Now, I will present it and ask if anyone sees any other issues, in respect to this topic, that needs to be addressed. My responses are in red. ********************* It is my contention that additional ratings over 100% should not be combined, using the Combined Rating Schedule, but should be added, according to 38 CRF 3.350. Thus a person with a 100% rating, with additional ratings of 10%, 10%, 10%, 10%, 10%, 10%, according to the letter of the law, establishes entitlement to SMC, at thee housebound rate, as long as they also meet the other requirements. ********************* (From 38 CFR 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 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, " This shows the requirements for SMC in respect to this issue: 1) SC disability(ies) 2) Independently ratable 3) separate and distinct from 100% 4) involving different anatomical segments or bodily systems Exception for 100% plus 100% is TDIU consideration. "additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployables" ********************* 38 CFR 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" The "concept" of the combined rating table is to determine the "efficiency" percentage left. Having a rating of 100% gives a 0 efficiency, according to 4.25. To combine additional ratings, over 100%, offers a negative efficiency. ********************* § 3.323 Combined ratings. (a) Compensation—(1) Same type of service. When there are two or more service-connected compensable disabilities a combined evaluation will be made following the tables and rules prescribed in the 1945 Schedule for Rating Disabilities. This goes with 38 CFR 4.25, which does NOT address efficiencies once 0% is reached. ********************* 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. Though the above is not a law, it IS a VA Manual. Note that the 100% rating states "under regular combined evaluation, but is NOT stated for the 60% rating. ********************* 38 CFR 3.350 (f)(4)(i) Where the multiple loss or loss of use entitlement to a statutory or intermediate rate between 38 U.S.C. 1114(l) and (o) is caused by the same etiological disease or injury, that disease or injury may not serve as the basis for the independent 50 percent or 100 percent unless it is so rated without regard to the loss or loss of use. This references disabilities that may be the result of conditions such as arthritis, or injuries that cause multiple disabilities. Example: Due to arthritis, a Veteran has LOU of upper and lower extremeties, for which he/she is receiving SMC rating. If that Veteran receives a hip replacement, as a result of arthritis, receives an additional 70% rating due to that hip replacement, the hip replacement not being the cause for the LOU, satisfies the requirement for higher SMC benefits, in accordance with 38 CFR 3.350. Another example of this: Due to a service connected MVA, a spinal cord injury has left the Veteran without use of both legs, and both arms, as a result of that MVA, also received an elbow replacement DC 5052 rated at 30% and a wrist replacement DC 5053 rated at 20%, neither of which caused the LOU of arms or legs, would not prevent that independent rating of 50%, from being applied in accordance with 38 CFR 3.350 for an increase of SMC benefits. 38 CFR 3.350(e): "(3) Combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of being permanently bedridden and being so helpless as to require regular aid and attendance without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement." This CLEARLY states that "must be based upon separate and distinct disabilities" is a separate requirement, and can not be included with the wording "independently". As I previously stated, there are other requirements, in ADDITION to the requirement of the rating being "independently ratable". "Involving different anatomical segments, or bodily functions" is self explanatory.. "Combined evaluation rating", reference to the combined rating schedule, nor "disability(ies) with a combined rating" aren't used, yet "independently ratable" is specifically used. ********************* 38 CFR 3.350: (4) Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above. The underlined section in the above paragraph, clearly disallows a bilateral rating, combining to 100%, from being used for this requirement. Two of the requirements here are 1) Single permanent disability 2) Independently ratable at 100%. The bilateral factor of the Combined rating table allows for bilateral rating to be used as a single disability. Unless one of the bilateral disabilities is INDEPENDENTLY rated at 100%, the bilateral factor can not be used as it would not be a "single" disability independently ratable at 100%. It would have stated, "a permanent disability". Congress is aware of the bilateral factor, yet chose to specify "single". ********************* 38 CFR 4.26 Bilateral factor. When a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability. The bilateral factor will be applied to such bilateral disabilities before other combinations are carried out and the rating for such disabilities including the bilateral factor in this section will be treated as 1 disability for the purpose of arranging in order of severity and for all further combinations. For example, with disabilities evaluated at 60 percent, 20 percent, 10 percent and 10 percent (the two 10's representing bilateral disabilities), the order of severity would be 60, 21 and 20. The 60 and 21 combine to 68 percent and the 68 and 20 to 74 percent, converted to 70 percent as the final degree of disability. A Veteran who has been awarded SMC, for LOU of lower extremities, could have a hip replacement DC5054 rated at 70% AND a knee replacement DC 5055, rated at 60%, both fulfilling the other requirements of separate and distinct, different anatomical segments, or bodily function. These two disabilities, according to the Combined Rating Table, would be combined, then using the bilateral rating factor, would be 96.8%, rounded to 100%. Neither disability is independently rated at 100%, and thus does not fulfill the"single" independently ratable part of the requirement. ********************* *****this is the updated section**** BVA:Citation Nr: 1021990 Decision Date: 06/14/10 Archive Date: 06/24/10 DOCKET NO. 03-25 209 “For purposes of 38 U.S.C.A. § 1114(s), an award of TDIU may satisfy the 100 percent schedular requirement if the TDIU evaluation was, or can be, predicated upon a single disability. VBA Fast Letter 09-33 (July 22, 2009). See Bradley v. Peake, 22 Vet. App. 280 (2008). However, no disability can be considered twice in calculating the percentage requirements to ensure that the prohibition against pyramiding contained in 38 C.F.R. § 4.14. Thus, the additional service-connected disabilities ratable as 60 percent disabling must be separate and distinct from those warranting the TDIU evaluation. The Veteran is currently service-connected for PTSD, rated as 70 percent disabling effective February 12, 2004; status post left knee replacement, rated as 100 percent disabling from October 19, 2004 and 60 percent disabling since December 1, 2005; residuals of left common peroneal nerve injury, rated as 10 percent from May 15, 1970, 20 percent from June 10, 2002, and 40 percent from July 27, 2005; left knee subluxation rated as 10 percent disabling from June 10, 2002 to October 19, 2004; organic brain syndrome, rated as noncompensable from April 1, 1980 and 10 percent disabling from June 10, 2002 to February 12, 2004; scars of the left eye brow and eyelid, rated as noncompensable from May 15, 1970 and 10 percent from April 17, 2003; and vertical diplopia of the left eye, rated as noncompensable effective June 10, 2002. At the outset, the Veteran has been awarded entitlement to TDIU, effective June 10, 2002, primarily based upon his service-connected acquired psychiatric disorder. Effective June 10, 2002, the Veteran also met the criteria of having additional service-connected disability independently rating at 60 percent or more (left knee degenerative joint disease rated as 30 percent, left knee subluxation rated as 10 percent, and left common peroneal nerve injury rated as 20 percent). As such, the record establishes the Veteran's entitlement to SMC benefits under 38 U.S.C.A. § 1114(s) effective June 10, 2002.” Organic brain syndrome, is rated under mental conditions, and thus can not be used in determining entitlement, under 38 CFR 3.350(s) as it must be separate and distinct, involving different anatomical segments or bodily functions. As the requirement states, “single disability” independently ratable, the BVA noted that the TDIU was “primarily based”, meaning that the TDIU rating requirement could well be based on just the single, 70% rating for PTSD. This BVA decision based the additional 60% rating on independently ratable percentages, as required according to 38 CFR 3.350, and not erroneously using the combined rating schedule, for which there is no legal basis to use, in ratings over 100%.

Are they now including the little VA outpatient clinics in this? We have an outpatient clinic near us, but they are not equipped for more than giving shots, taking blood, treating minor problems. I have to travel 2 hours, one way, for Neurology and other specialty clinics, Are we now going to be paid for travel to a clinic 20 minutes away when we are actually traveling 2 hours?

Carlie, this is exactly what we've been saying... 1) Intent of Congress 2) Specific wording used that is not used in other parts of the regulation or other regulations for that matter! 3) Wording is not ambiguous Since the 100% rating is needed as the "threshold" requirement, "additional disability(ies)" rated 60% or more" would have been more than sufficient, BUT Congress added the word "independently" and followed through with 2 additional requirements... MUST be separate and distinct AND involved different anatomical segments or bodily systems. Now, if we look at 38 CFR 3.350(e)(3) we read: "(3) Combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of being permanently bedridden and being so helpless as to require regular aid and attendance without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement." This CLEARLY shows that "must be based upon separate and distinct disabilities" is a separate requirement, not to be included with the wording "independently". The law/regulation are clear, specific, nothing ambiguous, and the VA has been getting away with this for DECADES! How many of our comrades died, without ever receiving what was rightfully theirs?:angry::angry:

Wow, this is the first time I've heard of such a thing! This is awesome that you shared this with everyone, and I have a feeling it just may save quite a few others from experiencing such a denial of supporting statement!

What's Jim Strickland's Board? Update... I found it and posted with you! I guess he never actually read 38 CFR 4.25 PR, as it is based on remaining efficiency, and could not have read 38 CFR 3.350 "(4) Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above." Can't use the bilateral factor here, and meet the requirement, according to the law/regulation! I really am amazed at how so many love to reference 4.25, yet they do not know what it is actually based on!! Too many give the simplest response, "that's how the VA has always done it". Well, the VA has always ignored TDIU until Bradley v Peake, had always denied AO claims that the Court now says they MUST address..... We, Veterans, may no longer be on active military duty, but we are on active VA watch!

You do not have to be housebound to be awarded the rate for housebound. SMC are ratings over the 100% rate, as Veterans weren't allowed to be paid in excess of 100%. I've been trying to find that old law, and for the life of me I just can't find it! Here is the CFR for it.... 38 CFR 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 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.