tdiu Smc An Issue

[Berta]

As you know the VA has consistently denied any SMC consideration as accrued benefit in my husband's case.I have SMC 2 CUEs pending for last 5 years that they keep sending me the same SSOC on.

But my recent award means in spite of their past errors on this-they have to resolve this issue anyhow -and now -not do to SMC 1151 but due to direct SC disabilities- totalling at least 300%.I am aggressively fighting that point with them.

I feel this is important info we should have-

NVLSP makes the point that M21-1 Mandates adjudicators to infer and consider SMC whenever the medical evidence warrants it.

A mandate is a 'have to' and yet it is more one thing the VA can fail to do properly.

I am beginning to think that since inferred SMC actually requires the VA to consider all medical evidence after they make direct or 1151 100% award or a TDIU award-

this additional review of the medical evidence for SMC purposes probably isn't even done.

Also I bet many vet reps do not realize that 1151 awards also come under the SMC criteria.

A local vet I helped got 100% under 1151 and an additional SMC award under 1151-they messed him up medically and probably shortened his life.

There are a few widows claims at BVA for accrued SMC under Nehmer-

and very few 1151 and SMC claims.

In one letter I received years ago the SMC consideration was denied because they said the veteran didnt ask for SMC.

He couldnt -he was dead already and besides that-SMC consideration is Mandated when the medical evidence warrants it-so most if not all veterans should not have to request SMC at all.

Hope this all makes sense-I just get livid over the crap the VA can state in their letters to us which is often not based at all on fact or established VA case law.

And if we buy what they are selling-without challenging them- we have lost $$$$$.

[Teac]

Pete,

While a case was listed here based on someone that was on a pension, that is not the case I was refering to..

I was refering to: Bradley V Peake read what the DAV said in their Oct 29, Service Bulletin

http://www.dav.org/veterans/documents/bulletins/2009-10.pdf

Compensation and Pension Service Fast Letter 09-33:

Special Monthly Compensation at the Statutory Housebound Rate

38 U.S.C. § 1114(s) provides that SMC at the (s) rate will be granted if a veteran has a serviceconnected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of a service-connected disability or disabilities. VA’s implementing regulation at 38 C.F.R. § 3.350(i) essentially mirrors the statutory language. Prior to the CAVC’s decision in Bradley v. Peake, VA excluded a rating of total disability based on individual unemployability (TDIU) as a basis for a grant of SMC at the (s) rate. VA relied upon language in citing VAOPGCPREC 6-99, dated June 7, 1999, in which the General Counsel stated that a TDIU rating takes into account all of a veteran’s service-con ected disabilities and that considering a TDIU rating and a schedular rating in determining eligibility for SMC would conflict with the requirement for “additional” disability of 60 percent or more by counting the same disability twice.

On November 26, 2008, the Court, in Bradley v. Peake, disagreed with VA’s interpretation and held that the provisions of section 1114(s) do not limit a “service-connected disability rated as total” to only a schedular 100 percent rating. The Court found the opinion too expansive because it was possible that there would be no duplicate counting of disabilities if a veteran was awarded TDIU based on a single disability and thereafter received disability ratings for other conditions.The Court’s holding allows a TDIU rating to serve as the “total” service-connected disability, if the TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to SMCat the (s) rate. The Court held that the requirement for a single “service-connected disability rated as total” cannot be satisfied by a combination of disabilities. Multiple service-connected disabilities that combine to 70 percent or more and establish entitlement to TDIU under 38 C.F.R. § 4.16(a) cannot be treated as a single “service-connected disability rated as total” for purposes of entitlement to SMC at the (s) rate. Based on the Court’s decision in Bradley, entitlement to SMC at the (s) rate will now be granted for TDIU recipients if the TDIU evaluation was, or can be, predicated upon a single disability and (1) there exists additional disability or disabilities independently ratable at 60 percent or more, or (2) the veteran is permanently housebound by reason of a service-connected disability or disabilities.

This is what the NVLSP stated to congress:

http://veterans.house.gov/hearings/Testimo...d%20B.%20Abrams

The VA, under 38 U.S.C. § 1114 and 38 C.F.R. § 3.350 has a level of monetary benefits, described as Special Monthly Compensation (SMC). SMC benefits are paid in addition to the basic rates of compensation payable under the Schedule for Rating Disabilities. SMC is paid to compensate veterans for service-connected disabilities such as loss of use of a hand or a foot, impairment of the senses, loss of vision or hearing, and for combinations of severely disabling service-connected disabilities. While the basic rates of compensation are predicated on the average reduction in earning capacity, special monthly compensation benefits are based on noneconomic quality of life issues such as personal inconvenience, social inadaptability, or the profound nature of the disability.[1]

A recent decision by the United States Court of Appeals for Veterans Claims (CAVC or Court) reveals that the VA has unlawfully limited the impact of a section of 38 U.S.C. 1114. The Department of Veterans Affairs, the veterans service organizations and the Congress should act now to implement this CAVC decision.

The statute involved, Section 1114(s), mandates increased benefits for veterans who are so unlucky as to have a service-connected disability rated as total, and suffer from additional service-connected disability or disabilities independently ratable at 60 percent or more. This benefit is usually called SMC(s).

Currently, a veteran entitled to SMC(s) without dependents is paid $320 more per month than a veteran entitled to a total evaluation ($2,993 as opposed to $2,673). The idea behind this benefit is that a veteran who has a service-connected condition that causes total disability and has significant other disabilities should be paid more than a veteran who just has the one disability.

The problem is that for many years the VA implemented Section 1114(s) with a regulation that unlawfully limited the beneficial impact of the statute. The regulation, 38 C.F.R. § 3.350(i)(1), requires a veteran to have one service-connected disability rated as 100 percent disabling to be considered for SMC(S) benefits. This regulation, 38 C.F.R. 3.350(i)(1) states:

[T]he 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, 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.

The language of the statute, however, requires total disability based on a single condition—not a single disability that qualifies for a 100 percent schedular evaluation. In other regulations, the VA has acknowledged that a service-connected disability that causes impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation is a total disability. See 38 C.F.R. §§ 3.340(a), 4.15, 4.16(a).

In Bradley v. Peake[2], the Court of Appeals for Veterans Claims (CAVC) finally dealt with this issue. This veteran sustained multiple shell fragment wounds from a bobby trap in Vietnam. He is service-connected for thirteen compensable scars and 10 separate muscle group injuries. He is also entitled to compensation benefits for Post Traumatic Stress Disorder (PTSD).

The veteran was granted total disability based on individual unemployability (TDIU) from March 25, 1983, until June 8, 1992, and then he was granted a 100 percent combined rating from June 8, 1992. Between 1971 and 2006, the VA made thirteen different adjudications to come to the above conclusions.

The Board of Veterans’ Appeals (BVA or Board) denied Mr. Bradley’s claim for SMC(S) and he appealed that decision to the CAVC. The CAVC held that:

• Section 1114(s) does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent—it includes a disability that would support the grant of TDIU.
  
  • When a veteran has several service-connected conditions that combine to a 100 percent evaluation, if the veteran would be monetarily advantaged by a having just one service-connected condition support a total TDIU rating and the veteran has other service-connected conditions that combine to 60 percent, the VA is obligated to rate the case to maximize the benefits that can be paid to the veteran. This is true because under 38 C.F.R. § 3.103(a) the VA is obligated to render a decision which grants every benefit that can be supported in law.
    

  [*]Because SMC benefits must be granted when a veteran becomes eligible without need for a separate claim[3], any effective date must be based on that point in time when the evidence first supported an award of SMC, which may be well before the veteran raised this issue. See 38 U.S.C. §§ 5110(a), 1114(s); 38 C.F.R. § 3.400(o).

  The Bradley decision should have a major impact both on current claims and claims that have been previously adjudicated. Many severely disabled veterans should receive significant retroactive payments.

  Cruiser has been wrong before. The VA has been wrong on Housebound before but what I get is that this particular court case really is limited to a Vet over 65 who was also on a pension.

  Its not so much the COVA Case its the way the regulation is worded empathsis on Part B.

  IF THERE IS cue AND i BELIEVE THERE IS YOUR BURDEN IS TO SHOW THAT THE va DID NOT RATE YOU BY THE cfr

  Sorry for CAPS but I am not going to type it over.

  I sincerely hope that you win the claim I have one on same issue coming up the pipe.

[Berta]

The key word as to SMC -as stated in Bradley V Peake is the word "or"

"38 U.S.C. § 1114(s) provides that SMC at the (s) rate will be granted if a veteran has a serviceconnected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of a service-connected disability or disabilities. VA’s implementing regulation at 38 C.F.R. § 3.350(i) essentially mirrors the statutory language."

[Pete53]

The VA has a lot of problems with the part a and part b and the word or

[Teac]

The VA has a lot of problems with the part a and part b and the word or

Since I have won three different CUE claims two for Asthma, and one for Aid & Attendance, this does not surprise me, ( not to mention all the 6 claims won on De Novo, and still another won at the BVA)

But in this case the VA implemented a regulation that unlawfully limited the beneficial impact of the true statue. And because of this, the va should be required to award Housebound retroactive to the date it should have been awarded, to every vetaran that lost out because of their stupidy. The VA is not above the law, and should not benefit from screwing veterans by not applying the law as it was written. And you can bet, if the shoe was reversed the VA would take back any funds the veteran is not entitled too, just as they do it now in other cases.

I really think disabled veterans could do a better job of rating claims that some of the Bozo's doing the ratings now.