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tdiu Smc When Rated 100% And Tdiu Under Bradley V Peake
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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was withdrawn in November 2009 after the United States Court of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
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