WAC-Vet75

Congrats Philip!!! You fought the fight, and won!!!

Duh, I just realized something else that helps in "proof" of additional ratings being ADDED..... http://www.benefits.va.gov/warms/M21_1.asp Clearly shows SMC ratings.... L+K, L+2K,.......R(N+R(1)A&A),(N½+R(1)A&A This is from the M21-1 manual!!! I do not know why I didn't think of that one before, as I've looked at that table before! The SMC ratings are added there, so common sense says any rating over 100% must be added also.

PR, believe me, it was MY pleasure! I faxed my CUE a few moments after my previous post. As I was composing it, I realized that I had crossed every t, and dotted every i. I didn't want to leave anything to doubt/question, hence the reason it is so long. I even used some of the wording of one VA Legal Precedence (that was my little way of slapping them) I felt my heart racing. I (literally) had to check my bp and pulse rate (both were significantly high) after I received confirmation that my fax sent, successfully. Now comes the waiting game. When will they make the award. I suspect they will try and say that my TDIU was based on a combined rating, which I can prove was requested. based on one specific disability only, rated at 70%. I already have prepared a response, should they try and claim that, including CAVC interpretation of law. The excitement I felt, when I realized that I "nailed" them, will be nothing compared to the excitement I will feel, when/if others are able to use this work to obtain the compensation they are rightfully owed. We, Veterans, are a family of sorts, we may not always agree with each other, may argue with each other, may not like one another, but we are a family none the less. I think the wait to hear if others are helped, is going to be more difficult to handle, than my own claim! Gee, can't tell I'm excited, can you?!

Pete53, the decision is up to you. When I meet other Vets who have legit claims, and they don't file for them, I explain that all they are doing is allowing politicians to serve expensive hors d'oeuvres at their parties, compliment of his/her injury(ies)/disease(s).........

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)

Correct language in last post...

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!

PS: Pete53, had Congress INTENDED otherwise, they would have stated it in the code, which they didn't!!!!

Broncovet, I believe you are right as I do not see anywhere that it states that SMC L will not be paid in lieu of services from the VA, only deductions due to hospitalization. Pete53...GO FOR IT, and request retro from the time the VA stated giving you the service, as that in itself, INFERS the claim!

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.

I still have not found any cases BVA or CAVC that challenges the VA using the combined rating schedule for SMC, BUT...... along with the M21-1 that I posted before.......... "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. I did find this........ 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. This shows that TDIU ratings can be combined, but I found no reference in the M21-1 for using the combined rating schedule for any disabilities over 100% in respect to SMC.

I have to throw a wrench in this... sorry..... found a 2005 BVA case that they did NOT add, but combined the additional rating http://www4.va.gov/vetapp05/files3/0517710.txt . I am presently searching all CAVA cases (so far July-Sept 2004, 12Dec02 #01-691, and 30Oct02 #01-468 were not searchable) to find anything on it, and will continue checking the BVA cases. If the case I just posted was not appealed...I would venture to say, from reading the CAVC cases, what I have already contended concerning the combined rating table and "efficiency" provides a well founded argument. I am not giving up... this is going to take time comrades!

Here is another BVA case http://www4.va.gov/vetapp02/files02/0205974.txt Citation Nr: 0205974 Decision Date: 06/06/02 Archive Date: 06/13/02 DOCKET NO. 94-37 569According to information in the recently received VA treatment records, which we presume show an accurate corrected visual acuity, the vision reported coincides with a maximum schedular evaluation for impaired vision. Thus, in the presence of the threshold 100 percent rating, the current grant of the 50 percent for PTSD, and 10 percent for tinnitus, the Board finds that the evidence is in favor of the claim. 38 C.F.R. § 4.25. The facts here moot consideration of housebound status. Further, the result does not conflict with the holding in VAOPGCPREC 6-99. In summary, the rating for diabetic retinopathy with the combined ratings for PTSD and tinnitus support entitlement to SMC under 38 U.S.C.A. § 1114(s), 38 C.F.R. § 3.350(i)(1). This rating scheme replaces the individual unemployability rating from the effective date that the RO must determine in the first instance. The record offers an alternative basis to continue the total rating and grant an SMC rating under 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i) 38 CFR 3.350 (i) (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.

Veldrina.... I believe you misunderstood what PR was asking. For SMC housebound under the 100% plus 60%.... After one reaches 100%, either under the rating schedule, or extra schedular, the additional 60% is not a "combined evaluation", but rather an independent 60%, ADDING disabilities as oppose to using the combined rating chart. According to VA training module 4F 12-06 "Special monthly compensation is also payable if the veteran has one single service-connected condition rated 100% disabling plus other, separate service-connected condition(s) independently ratable at 60% or more in combination, or if veteran is permanently housebound, or is in need of regular aid and attendance." It does not state "combined evaluation", nor does it state "which combine". USC 1114 states ....."additional service-connected disability or disabilities independently ratable at 60 percent or more". PR is asking is, after the 100% rating, can the additional rating of 60% be found by using 30% + 20% +10%, instead of making a combine evaluation 30%+20%=44% 44%+10%=50%?

Just to let everyone know...this was the date of that BVA decision.... Citation Nr: 1021990 Decision Date: 06/14/10 Archive Date: 06/24/10

I have to be the happiest person in the world right now! Knowing that I may have helped one of my comrades get what he/she deserves, also helping out myself (they made a CUE on mine also), is the best feeling in the world!!!! Gee, seems my worsening condition was actually a blessing, as it forced me to stay in bed (what I thought was way too much!), causing me a LOT of time to think, and read (when I can read)! Now, I want all my comrades that this information helps to take their right hand, put it on their left shoulder, their left hand on their right shoulder, and squeeze... that's a great big old hug from me! For those that are physically unable to do that......then picture a big hug coming from a little red-head, and that's my hug to you! Old soldiers never die.....we just pick new wars to fight!

You just saved me a lot of work! I was preparing to compose my CUE letter, now I have a template!! Thank you!

From another thread I had started, there was a bit of discussion concerning SMC and additional disabilities. Here is a BVA case that shows once a Veteran is SMC eligible, any additional disability ratings ARE NOT combined.... http://www4.va.gov/vetapp10/files3/1021990.txt 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.

USC 1155 The Secretary shall adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. The schedule shall be constructed so as to provide ten grades of disability and no more, upon which payments of compensation shall be based, namely, 10 percent, 20 percent, 30 percent, 40 percent, 50 percent, 60 percent, 70 percent, 80 percent, 90 percent, and total, 100 percent. The Secretary shall from time to time readjust this schedule of ratings in accordance with experience. However, in no event shall such a readjustment in the rating schedule cause a veteran's disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran's disability is shown to have occurred. Now, reading this, it clearly shows "The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations." this statement gives a basis for sound legal argument for ratings in excess of 100%, to become cumulative in SMC ratings. I've been reading the COVA cases, and has yet to find any that has presented with this argument. Has anyone found any cases that were heard on the argument that ratings for SMC increases, were or were not cumulative in excess of 100%?

I have read through the M21, 38CFR, USC 1114, and I found NOTHING that states disability ratings, over the initial 100%, are to be combined using the VA's combined rating schedule to yield a combined evaluation for SMC. Anyone with a rating of 100% for a single disability (including TDIU), and an additional 60% rating for SC disability(ies) MUST be given SMC (s) in accordance with 38 USC 1114 (s). I am now wondering if my claim for Lupus and A&A may be prolonged in the rating board due to this CUE. Being 100% TDIU, with an additional 70% (not combined) would have made me eligible for SMC (s). I have to call the PVA up tomorrow, as I just realized somewhere my MS rating of 30% disappeared, or I neglected to add it.! With the 30% for MS, added to the other 70%, gives me a separate 100% (not combined), and combined gives me an additional 90%. Either way, I should have been granted SMC (s), yet it was never even considered!

My TDIU was based on one 70% rating, not from a combination, as I had written to the Adjudication Officer, directly, stating that I went through long periods of not being able to leave my home, and when able to leave the home I could not go unaccompanied (I had medical issues that required attention), I do believe that letter inferred housebound, even though I did not specifically request it. Of course, I had no idea there was such a thing as SMC s for housebound at the time! I stated that I knew of no job positions that would allow me to remain in my own home, not have to associate with others, and that many times I was unable to even answer the front door. This was all in the early 90's, long before the internet became what it is today. Now, due to MS, I would find it difficult to work via the internet on a consistent basis, and earn a substantial living. Wow, this thread is really depressing.....facing these realities really makes me feel useless. I would so gladly give back every penny, give up all claims, if I could just be me again, and I know many of you feel the same way. Bradley v Peake over rides this VA General Counsel Opinion, and should help get SMC s for a number of Veterans. This opinion also goes directly against 38 USC 1114 (s) 2, by stating that one must have additional SC disabilities ratabe at 60% or more, in order for the SMC s rate to be paid! CFR § 4.30) qualifies as the “single” 100 percent service-connected disability. However, VA General Counsel Opinion VAOPGCPREC 6-99 (June 7, 1999) held that entitlement to SMC at the “s” level must not be based on a total disability rating awarded by the working of 38 C.F.R. § 4.16 (Individual Unemployability). In order for the (s) rate to be payable, however, the veteran must have additional service-connected disabilities independently ratable at 60 percent or more. These additional disabilities must not have been part of the basis under which the total disability rating was granted.

I hope it helps you!! With my CUE, I am going to refrain from mentioning Bradley v Peake, as I do not want them to try and use the date of that opinion/decision. I don't know if I'm way off base in my contentions, and I hope someone may chime in to let me know if I am. Reading the VA's reasoning for the combined ratings, it just makes no sense to rate someone 0% efficiency, then use the same combined rating schedule for efficiency to rate new disabilities! From my understanding, SMC's have been in effect since PL 73-2, July 1, 1933, FOR A REASON, and that being, no Veteran can be rated higher than 100%, because you can not be less efficient then 0%!

http://www.benefits.va.gov/warms/M21_1.asp It took me a little bit to find it again.... I am presently getting my CUE together, if they do not grant it on my contention that I was HB back in 93, when I was granted 100% TDIU (70% PTSD), then when I received my additional ratings totally 70% independently (54% combined rating) they never considered SMC. The combined rating chart is used to show "efficiency" http://www.benefits.va.gov/warms/bookc.asp Click on subpart A 4.25 It clearly states "efficiency"..once you are at 0 efficiency, how in the world can they use the combined rating to make you negative efficiency... wouldn't that be the same as the Veteran taking away the "efficiency" of another person? I am anxiously awaiting any and all responses to what I've posted..........