tdiu Pete, Jbasser And Crew, I Found The Regs On Tdiu For Smc S1 And S2

[dav_marine72]

Hi All,

I posted a few days back about being TDIU P&T and getting entitlement to SMC S2 based on a single 100% service connection and being housebound. I received S1 while on convelescent leave because my back was 100% temp. Once I came off the temp and was rated TDIU bye bye SMC. The Veterans Benefit Manual (thank the Lord for ebay) that I have alerted me to a side not stating that TDIU is a basis for SMC entitlement. I looked though the regs it pointed to for days unable to find any language pointing directly to TDIU so I wouldn't need to have this sent to the BVA because the VARO certainly doesn't know about it or didn't want to give it. Anyway what I needed I found in VA Gen. Coun. Prec. 2-94 (Feb. 2, 1994). Although this precedent was written to establish SMC entitlement for convelscent leave it did drop this very wonderful statement:

This is under comment 7.

“ We find nothing in the language of section 1114 (s) to indicate that Congress meant to exclude service-connected disabilities rated as total under 38 C.F.R. 4.28, 4.29, or 4.30. (Although it is not the question before us, we also find nothing in the language of section 1114 (s) to indicate that Congress meant to exclude service-connected disabilities rated as total under C.F.R. 4.16, i.e, a total rating based on individual unemployability.)

Stick that one in your pipe and smoke it VARO!!!!!!!!!!!!

[broncovet]

RO's often do this stuff to cheat Veterans. They make you think the regs say such and such..when they dont. They do this to deny you benefits.

[dav_marine72]

Broncovet,

I fully agree. What is so sad is that if I hadn't found a cheap manual on ebay I would not have known to appeal this. Even my service officer didn't know. I can only imagine how many vets can't do research on their own and get screwed on a daily basis by VAROs.

[Teac]

This is what I found.. but it there appears to be a contradiction......in that one area says TDIU will not be considered for Housebound but then a US Court of Appeals case does allow it ,, so what is right? You be the judge

Entitlement to Housebound Benefits:

3.350 Housebound on a factual basis or if a veteran has a single 100% and other disabilities combine to at least 60%, schedularly.

(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.

Unfortunately, we cannot consider 38 CFR 4.16, to get to a single 100% for Housebound purposes, only for Aid and Attendance.

§4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:

(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,

(2) Disabilities resulting from common etiology or a single accident,

(3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,

(4) Multiple injuries incurred in action, or

(5) Multiple disabilities incurred as a prisoner of war.

It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (Authority: 38 U.S.C. 501(a))

(B) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 06-1854 GARY D. BRADLEY , APPELLANT, V. JAMES B. PEAKE , M.D., SECRETARY OF VETERANS AFFAIRS, APPELLEE.

The case primarily addresses Housebound benefits in the following way: With the veteran being in receipt of Individual Unemployability benefits based on his 70% PTSD and then his separate and distinct disabilities combining to at least 60% was he entitled to schedular housebound benefits.

The Court decided with the veteran’s sole disability for which he was entitled to Individual Unemployability benefits being 70% PTSD this meets the Housebound requirement of having a single 100% disability. Then, with his other separate and distinct disabilities combining to at least 60% he is entitled to schedular housebound benefits.

Also, when the veteran has a total knee, hip, etc. replacement and this puts his/her knee at 100% for 13 months and his/her other disabilities combine to at least 60% we can grant housebound benefits during the 13 month period.

Same principle applies when a veteran has surgery on her knee, for example, ACL repair and is granted 38 CFR 4.30, (Para 30), for 2 months of temporary 100% based on convalescence due to her surgery and her other disabilities combine to at least 60% we can housebound benefits during the 2 month period.

If the veteran does not have a single 100% disability or is not receiving individual unemployability benefits from the VA and the medical evidence shows he/she is in need of factual housebound benefits we can refer the case to Compensation and Pension, (C&P) Service for an advisory opinion. This doesn’t happen very often as when the veteran is in need of housebound benefits due to his service connected disabilities the veteran will usually have a single 100% disability or in receipt of individual unemployability benefits.

[Pete53]

I am 100% P&T for Panc Disorder and Major Depression

I am 30% for Pes Planus or flat feet

I have SMC S Rating for being housebound.

I have appealed to BVA for effective date to go back to when I was awarded 100%.

It seems that VA never uses the Part B nor the or part of regulations

[dav_marine72]

Thanks Pete and Teac,

I'm going to submit based on what I found and see what happens. I guess I will be able to you my outcome in say 1-10 years. LOL. Sounds like a prison sentence doesn't it. Thanks everyone.

[Berta]

In Bradley V Peake the "CAVC made it clear that the VA could not require one condition rated at 100 percent disabling to be a precursor for SMC (S) benefits."

VBM 2009 edition NVLSP page 342.