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was withdrawn in November 2009 after the United States Court of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

[broncovet]

Jim

According to your post, your medical evidence supports entitlement to TDIU back to 2007. However, as Berta has pointed out, the VARO's have a history of denying such things, by doing things such as giving a reasons and basis that TDIU is moot, when it is not, and thus the withdrawal of the OGC opinion. This would mean you would have to appeal again. Welcome to the hamptster wheel.

If you started a new post with your question, you are more likely to get more opinions on it, probably many of which would be better than mine.

I agree with Berta's "deliberate misinterpration" theory by the VARO. There is simply too much financial incentive for them to do this, as many wont appeal, and even for those who do appeal, the VA wont have to pay the claim for years down the road. The VA has been practicing this for decades, not just with SMC but with everything. The VA is supposed to rate claims strictly on the rating criteria, and not make up stuff as they go along.

It is just too easy for the VA to do what has been called "top sheeting", and not read the claim. Ten years later they can then go back and say, "Oh, I guess you are right..you do have evidence to support this". Its a slippery slope, and the VA is paving our road to benefits with an obstacle course that few can negotiate successfully.

[john999]

I claimed "S" in 2010 and got it retro to 2008 when I became total plus 60%. I did not even know about Bradley until Teac and others brought it up last year. So I got $8500 in retro. Now if I had been total plus 60% since 2001 I don't know if I would have got all that retro, but I don't see why not.

[Berta]

Teac asked:

"for example a veteran should have been awarded SMC based on evidence of record in 2000, but doesn't request it until 2010. By your reading does this mean he should get 10 years of back pay? "

If he/she can file a successful CUE on the older decision.Regardless of Whether Bradley is approriate or not.

SMC is an inferred issue Mandated by Statute.

VA used as one of their denials of my CUE, that the veteran "didnt ask for SMC"

He was dead due to VA health care and DMII,CVA,IHD (AO) by the time the VA awarded him 100% for his PTSD.

He couldnt ask 'from the grave' and I rebutted to VA that there is no regulation whatsoever that implies or states a veteran must ask for SMC to be considered for it.

When added up as far as the 1151s and direct SC go plus the PTSD that is 5 separate 100%s.

The VA did NOT even consider him for SMC.They had in their possession all medical evidence from the FTCA case,the 1151 case, and the last AO case.

John said:

"Now if I had been total plus 60% since 2001 I don't know if I would have got all that retro, but I don't see why not."

I don't see why not either John.

SMC is predicated on medically established SC percentages of 100% (or TDIU) plus established additional independent disability of 60% or greater.

My CUEs were based on violation of the Mandated statute of SMC plus the wrong diagnostic code for the CVA and complete lack of diagnostic code on the IHD.

When VA harms a vet to the point of causing their death and this is a documented determination by the VA,then the least the VA can do is properly code the disabilities they caused the veteran's death with and make a proper SMC finding.

I think my CUE claims however will be rendered moot by my current AO IHD claim.I even asked them to render them moot if the AO decision is favorable.But I heard they are deciding the CUE issue first.

The results would be the same either way but I sure would like to see how they handle these CUE claims as it could benefit someone here.

The statute means that SMC must be an inferred issue in every case that warrants SMC consideration.

Prior to Bradley that meant every award of 100% SC when a vet also had independent SCs at 60%.

Bradley means that TDIU based on one single SC warrants SMC consideration if the veteran also had 60% SCs independent of the TDIU SC.

Whenever a veteran receives an award of TDIU or 100% based on a single SC and also has additional SCs at 60% or more ( as explained in the recent BVA decision I posted here yesterday) then the MANDATE must confer a SMC consideration of the evidence.

CVA could still deny the SMC and the vet could appeal it.

[Berta]

ooops I forgot the main reason for my post:

Ron Abrams, the first NVLSP lawyer I ever talked too- circa 1991, made these points during H VAC hearings as to Bradley:

http://democrats.veterans.house.gov/hearings/Testimony.aspx?TID=59742&Newsid=442&Name=%20Ronald%20B.%20Abrams

In part;

“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 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).  “

AND

“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. “

You dont have to 'ask' for SMC when the evidence VA has shows they should infer it.

Bt Bradley has made it necessary for veteran's to 'ask' for retro SMC and if the claim that failed to award it has been denied and not in appellate process then I assume they must ask for it by way of a CUE claim.

I dont know any other way Bradley would work and havent seen any other claim scenario yet for a successful SMC retro award under Bradley.

It is too soon for any RO level Bradley decisions to have reached the BVA bu I keep checking there.

[Teac]

Berta,

I cited what Ron Abrams said when I did my CUE , and the va just ignored that information....