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
Caluza Triangle – Caluza vs Brown defined what is necessary for service connection. See COVA– CALUZA V. BROWN–TOTAL RECALL
This has to be MEDICALLY Documented in your records:
Current Diagnosis. (No diagnosis, no Service Connection.)
In-Service Event or Aggravation.
Nexus (link- cause and effect- connection) or Doctor’s Statement close to: “The Veteran’s (current diagnosis) is at least as likely due to x Event in military service”
VA has gotten away with (mis) interpreting their ambigious, , vague regulations, then enforcing them willy nilly never in Veterans favor.
They justify all this to congress by calling themselves a "pro claimant Veteran friendly organization" who grants the benefit of the doubt to Veterans.
This is not true,
Proof:
About 80-90 percent of Veterans are initially denied by VA, pushing us into a massive backlog of appeals, or worse, sending impoverished Veterans "to the homeless streets" because when they cant work, they can not keep their home. I was one of those Veterans who they denied for a bogus reason: "Its been too long since military service". This is bogus because its not one of the criteria for service connection, but simply made up by VA. And, I was a homeless Vet, albeit a short time, mostly due to the kindness of strangers and friends.
Hadit would not be necessary if, indeed, VA gave Veterans the benefit of the doubt, and processed our claims efficiently and paid us promptly. The VA is broken.
A huge percentage (nearly 100 percent) of Veterans who do get 100 percent, do so only after lengthy appeals. I have answered questions for thousands of Veterans, and can only name ONE person who got their benefits correct on the first Regional Office decision. All of the rest of us pretty much had lengthy frustrating appeals, mostly having to appeal multiple multiple times like I did.
I wish I know how VA gets away with lying to congress about how "VA is a claimant friendly system, where the Veteran is given the benefit of the doubt". Then how come so many Veterans are homeless, and how come 22 Veterans take their life each day? Va likes to blame the Veterans, not their system.
However, (and I have no idea of knowing whether or not you would likely succeed) Im unsure of why you seem to be so adamant against getting an increase in disability compensation.
When I buy stuff, say at Kroger, or pay bills, I have never had anyone say, "Wait! Is this money from disability compensation, or did you earn it working at a regular job?" Not once. Thus, if you did get an increase, likely you would have no trouble paying this with the increase compensation.
However, there are many false rumors out there that suggest if you apply for an increase, the VA will reduce your benefits instead.
That rumor is false but I do hear people tell Veterans that a lot. There are strict rules VA has to reduce you and, NOT ONE of those rules have anything to do with applying for an increase.
Yes, the VA can reduce your benefits, but generally only when your condition has "actually improved" under ordinary conditions of life.
Unless you contacted the VA within 72 hours of your medical treatment, you may not be eligible for reimbursement, or at least that is how I read the link, I posted above. Here are SOME of the rules the VA must comply with in order to reduce your compensation benefits:
NOTE: TO PROVE CAUSE OF DEATH WILL LIKELY REQUIRE AN AUTOPSY. This means if you die of a SC condtion, your spouse would need to do an autopsy to prove cause of death to be from a SC condtiond. If you were P and T for 10 full years, then the cause of death may not matter so much.
Question
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 by TeacLink to comment
Share on other sites
Top Posters For This Question
5
4
3
2
Popular Days
May 11
7
Sep 19
5
Sep 20
3
May 10
2
Top Posters For This Question
Teac 5 posts
john999 4 posts
Berta 3 posts
Philip Rogers 2 posts
Popular Days
May 11 2011
7 posts
Sep 19 2010
5 posts
Sep 20 2010
3 posts
May 10 2011
2 posts
17 answers to this question
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now