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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Teac

Smc When Rated 100% And Tdiu Under Bradley V Peake

Question

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was withdrawn in November 2009 after the United States Court of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 Teac

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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..

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john - I don't think the people at VA are stupid, they're just following instructions. VA instructions are most likely written by attorneys. This can be seen by a denial, for TDIU, that quotes 4.16a but not 4.16b. I'm fairly sure most VA responses are canned, preprogrammed answers, otherwise they'd never get any work done. The employees are just doing their jobs and doing them the quickest way possible. They're not paid to think. jmo

pr

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.

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When I say the VA is stupid I mean they don't read the evidence. Now I sent them the Fast Letter regarding Bradley v Peake. They won't read it. They will just see that I am TDIU and then deny the SMC "S". Then I have to NOD it and ask for a DRO. If there is any controversy he will deny it. Then off to the BVA. This will take probably three to four years from the time I drop the claim in the mail. If they grant the SMC first time around I may drop dead.

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Unfortunately since Bradley was decided in 2008 many claims that it would pertain to are not decided yet at the BVA web site.

My concern over Bradley is that it didnt seem to state whether it was retroactive or not.

I think the general consensus here was that any vet it applied to should file a CUE claim on any past decision that rendered TDIU but not any SMC consideration yet the evidence available to VA at time of the TDIU decision would have supported SMC award (or at least SMC consideration)

(I used this as a point in my CUE- it was not only CUE for VA to make the wrong rating in a past 1998 award (1151 and Direct SC CVA and to totally ignore any IHD diagnostic code and rating at all( IHD being the Death cert cause of my husband's death and 1151 plus now direct SC from my last award and now due to AO ) and to take into consideration his 100% for PTSD but the fact remains that SMC is an inferred MANDATED issue when the evidence warrants SC consideration.

It is one thing for VA to deny SMC-it is definitely a clear and unmistakable error if they have possession of ample medical evidence of SMC potential but do even NOT infer SMC at all.

“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.”

Source page 4 of

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

(the 'will now be granted' part makes me wonder if Bradley only applies to post Bradley claims)

However-

In Chapter 17, Note 261 of the 2010 Edition of the VBM, NVLSP makes this statement referencing the CAVC Bradley decision:

"the effective date of payment for Special Monthly Compensation is not when the issue was specifically raised by the evidence,but when the evidence first suggested a need for this benefit."

That gives much leeway for many SMC issues.

There is much discussion here on Bradley and on the net.

BTW in attempting to deny my CUEs the VA made up their own regs- they said for example-Rod was not extended SMC consideration because he didnt ask for it.

This is NOT a any requirement at all for SMC consideration.

I rebutted that since the 100% and 1151 awards came years after he died how does a dead vet ask for a SMC benefit?

And reminded them that no where in 38 USC 1114 is this a criteria for SMC consideration.

The VA is mandated to infer it ,not the veteran.

But I bring this up here because those ratings and diagnostic codes are critical on rating sheets with awards.

The decisions I cued involve a vet with 1O0% P & T SC, PTSD, 100% P & T for IHD, and 100% P & T as a proper CVA rating for 2 years prior to death.

I proved the CVA was directly due to 1151 negligence in 1998 and then was granted as due to misdiagnosed DMII last year by VA.

Same for the IHD-I proved IHD under 1151 at 100% at death P & T and then I proved last year it was also directly due to SC.

That is 400% SC under both 1151 and direct SC at death plus the 100% SC PTSD yet this didn't warrant at least some SMC consideration?

The were other factors as well -proven misdiagnosed HBP, PN and PAD etc etc.

I keep mentioning this stuff regarding my issues a lot here because I fully believe the VA makes many errors deliberately on SMC situations.The new IHD AO presumptive is going to put many TDIU vets into the SMC range.

If the VA can get you to buy what they are selling which worked with me for a few years until I got smart on 38 SC 1114,

they might successfully snooker you out of any potential SMC award that your disabilty would warrant.

Edited by Berta

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This post is very interesting because I meet the criteria of the original question.

1) I was denied an increase from 50% to 70% in 2004 for PTSD. (I filed an IU the same time I filed for the 70% increase. Both these claims were denied so I appealed this to the BVA.)

2) I was denied a right knee injury in 2005.

3) I was awarded 30% hearing loss in 2007 but was denied Meniere's Disease 1/22/07.

4) I applied for left knee disability as a residual to the right knee.

These all went before the BVA judge at the end of 2009. In her decision, she service connected the right knee which the RO assigned 10% disability. She also service connected the Meniere's Disease which the RO had no choice but to award 100% permanent and total because of the evidence in their possession. She remanded the left knee residual which was service connected and awarded 10%. She also remanded the IU. (I applied for Aide and Attendance and was awarded at the L 1/2 SMC.)

This is where it is becoming very interesting. March 4, 2011 I had three C & P's for IU. The question to all three examiner's was "Is this veteran unemployable prior to 1/22/07."

1) One C & P was for hearing loss and under "Please describe how the veterans disabilities impact his ability to secure or maintain gainful employment." Based on the veteran's hearing loss, his ability to communicate effectively is severely impaired. Impaired communication can result in a difficulty working environment compromising productivity. People with hearing loss have difficulty getting and keeping a job. Those that have employment need communication accommodations to function most effectively. However, due to uncertainty or fear, employers are ofter unwilling to hire hard of hearing. This is illegal under various laws, but still extremely common. In the MarkeTrak VIII study of more than 40,000 households in the US on earnings and unemployment rates, hearing loss revealed a deleterious impact. (The Hearing Journal Oct. 2010 Volume 63, Issue 10). (I failed to mention that earlier in her report she had my hearing as severe to profound in both ears.)

2) Psychiatric report for PTSD. DIAGNOSTIC IMPRESSION: Axis I: Post-traumatic stress disorder, major depressive disorder. Axis II. No diagnosis. Axis III. Meniere's syndrome, traumatic arthritis of knees, degenerative joint disease of bilateral knees and lower back with history of back surgery. Axis IV. Multiple surgical health problems. Axis V. Global Assessment of Functioning equivalent to 40.

OPINION: The Veteran continues to suffer from symptoms of depression. The Veteran suffers from chronic pain. Has difficulty ambulating. Has hopeless, helpless, worthless feelings. The veteran has symptoms of PTSD related to intrusive thoughts, flashbacks, nightmares of the past. He has avoidance behavior to watching anything relating to war as well as crowds. He gets anxious and nervous. He gets hypervigilant with loud sounds. The Veteran, in addition, has multiple physical health issues; two major problems being Meniere's syndrome with constant dizziness and feelings of nauseous and difficulty with ambulation secondary to the same, and has to walk with the help of a cane as well as having problems with ambulation and balance secondary to arthritis of his knees. The Veteran had a 1961 right knee injury. He has had arthritis. He has had back injury and has had back problems. In addition,, he has heart problems, thyroid problems, cholesterol problems, GERD, etc. The Veteran's evaluation by Dr. -----on 7/29/04 indicated that he was unable to work since 1985 due to back injury and Veterans evaluation of 7/12/2005 of Dr. ------- ( C & P exam) indicated PTSD and associated with moderately severe to severe major depression with the statement that physical and emotional condition had affected him socially, industrially, as well as occupationally, matter being further compounded by his numerous physical problems including poor hearing and back pain. As far as opinion of impact of service connected disabilities a whole on his ability to secure or maintain gainful employment prior to 1/22/2007. The Veteran has suffered from multiple physical and psychiatric health issues prior to 1/22/2007 and the service connection was in effect for PTSD and right knee disorder at that time with PTSD evaluated at 50% and right knee as 10% disabling.

The Veteran has suffered from PTSD along with right knee condition as well as other multiple physical health problems for the last several years, and Veteran has not been able to work since 1985 with educations being 8 years of grade school with GED later in service and experiencing work as a supervisor for a construction company and unable to work full time since 1985. The Veteran has multiple physical health problems including service connected conditions as mentioned above which affect him severely with any kind of gainful employment or maintaining any gainful employment or substantial gainful employment prior to 1/22/2007. The Veteran did start with his back injury, unable to work, but over time the Veteran has had symptoms of post-traumatic stress disorder, right knee injury, chronic pain, balance problems, Meniere's disease, and multiple health issues which affect him on a day-to-day basis with physical and emotional issues affecting him in a negative way with social, occupational functioning including mood. The GAF is reflective of severity of Axis I diagnosis which is severe. The Veteran's condition does affect him severely in a negative manner. As far as ability to secure or maintain gainful employment prior to 1/22/2007.

3) C & P by medical doctor is too lengthy but in-a-nutshell he also said my service-connected knee injuries made me unemployable including sedentary prior to 1/22/2007.

Since all these issues were remanded to the RO, I have been awarded 100% secular for Meniere's but these reports must now go back to the BVA for a decision on IU. I don't know what the results will be, however, if she awards IU it would be back pay at 100% rate for two years prior to the original date of 100%. Any comments? Jim 501st

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