tdiu Smc When Rated 100% And Tdiu Under Bradley V Peake

[Teac]

Those who are smart concerning SMS' s do you know....

Lets say a veteran has a TDIU rationg for a back injury.

Then at a later date is awarded a 100% rating for a totally different issue, so because he can't be rated 100% schedular and TDIU at the same time the TDIU is revoked. The same veteran has a seperate single 60% rating, and is awarded SMC L 1/2 or Aid & Attendance. The same veteran has additional ratings that alone combine to 60%. Under Bradley V peake TDIU can still be Considered due to the possible award of SMC...

So Now lets say the veteran is rated 100% with SMC L 1/2 ( a 100% rating and a seperate combined rating of 60%)

For SMC purposes only he is entitled to TDIU for a different problem ( TDIU awarded based on a seperate and additoinal rating of 60%)

( this would be like haveing two seperate 100% ratings and a seperate combined rating of 60%)

The question: Based on Bradley v Peake would this veteran be authorized any additonal SMC's above L 1/2

http://www4.va.gov/v...es3/1027802.txt

VA General Counsel had issued a precedent opinion holding that a

claim for TDIU may not be considered when a schedular 100-percent

rating is already in effect. See VAOPGCPREC 6-99 (June 7, 1999).

That is, the issue was essentially moot. However, the opinion

was withdrawn in November 2009 after the United States Court of

Appeals for Veterans Claims (Court) determined that there was an

exception to the opinion when it decided Bradley v. Peake,

22 Vet. App. 280 (2008). The Court held that there could be a

situation where a veteran has a schedular total rating for a

particular service-connected disability, and could establish a

TDIU rating for another service-connected disability in order to

qualify for special monthly compensation (SMC) under 38 U.S.C.

§ 1114(s) by having an "additional" disability of 60 percent or

more ("housebound" rate). See 38 U.S.C.A. § 1114(s) (West 2002

& Supp. 2010). Therefore, the TDIU issue is potentially not

moot.

Edited September 19, 2010 by Teac

[Buck52]

This is an old thread

but what if a veteran is rated 2 100% one IU And another one 100%scheduler 

IU is for hearing loss 

100 %scheduler is for Depression 

Do they revoke the IU? And make this veteran 100% and would he meet the SMC S Criteria? 

What if the Veteran was IU useing the extra scheduler at 90% combined rating  and is given the IU with P&T

This same veteran comes down with another seperate rating ...say for  a 70% PTSD rating...ok do they add that to his IU WITH P&T and revoke his IU? and give the SMC S? 

IF THIS HAPPENS  IS THE VETERAN CONSIDERED TO BE 100% SCHEDULER AS A 100% FINAL DEGREE RATING???

Anyone?

[john999]

I would bet that any of us who put in a HB claim who have TDIU plus 60% are going to be called in for C&P exam for HB. The VA is going to ignore the statutory nature of entitlement and make the vet go through the C&P and then very likely deny it. If you ask for the HB as a statutory benefit and the VA calls you in for an HB exam what should the veterans do?

[Teac]

I would bet that any of us who put in a HB claim who have TDIU plus 60% are going to be called in for C&P exam for HB. The VA is going to ignore the statutory nature of entitlement and make the vet go through the C&P and then very likely deny it. If you ask for the HB as a statutory benefit and the VA calls you in for an HB exam what should the veterans do?

There is no valid reason to have a C/P Exam based on a statutory award of HB... it would just be a waste of time, money if the va required all claims under bradledy v peake to undergo additional exams.

Keep in mind if that was the case than anyone rated 100% statutory with the additional 60% would have to under go an exam as well.

I don't think the va is going to add to their workload unless it is necessary. Of course the va employee doesn't always make decisions that are logical.

[john999]

The thing is the people at the VARO are so stupid they will just see "claim for HB" and probably ignore the law and schedule the exam. However, I am still sending in my statutory claim for HB before they change the law.

[vaf]

My point, exactly. The VARO sent my husband a form for his physician to complete, plus two copies of the form authorizing release of medical information to the VA. There may or may not be a C & P, but even by the forms we received, it's clear the VARO intends to ignore statutory entitlement to SMC(s).

We explained the basis for statutory entitlement, plus copies of the decisions, as I said under my post in FAQ's. The VARO's response did not discuss statutory entitlement, although they did list the Court decisions I printed and sent as evidence. Evidence not discussed is evidence not considered.

Let me ask again here -- the VARO's refusal to change the 100% schedular to TDIU was not made through a formal "Rating Decision," and therefore, there were no reasons and bases provided for this statement (as premature as it was since it was contained in a VCAA notice!). Instead, that statement was contained in the first paragraph of the letter after the salutation. They said, "Our records indicate that you are already receiving a 100% combined disability rating. Therefore, the issue of individual unemployability will not be considered."

Although not a Rating Decision, the words written clearly indicate the opinion is final, therefore, is it a CUE?

[Teac]

They said, "Our records indicate that you are already receiving a 100% combined disability rating. Therefore, the issue of individual unemployability will not be considered."

Although not a Rating Decision, the words written clearly indicate the opinion is final, therefore, is it a CUE?

/quote]

It must be Que, if the veteran would have received the SMC had he been TDIU vrs 100%... and the TDIU was because of one medical issue.. according to Bradley v Peake the va now has to consider TDIU because of the posibility of SMC's, which might not be poossible with a straight 100% rating..