tdiu Smc "s"

[john999]

I have an indication that the VA is processing my request for a SMC "S" claim due to TDIU plus 60%. It is happening fast one way or the other. They owe me two years of retro on this since I should have been awarded "S" in 2008. You know it buggs me because if I did not hear it here I would never have known, and the VA would never have granted it. If you don't claim it you never get it. The VA is obviously never going to look back at all the IU plus 60% awards and do anything unless the vet claims it. I bet there are plenty of vets with 100% schedular and 60% who don't have "S".

[vaf]

I have an indication that the VA is processing my request for a SMC "S" claim due to TDIU plus 60%. It is happening fast one way or the other. They owe me two years of retro on this since I should have been awarded "S" in 2008. You know it buggs me because if I did not hear it here I would never have known, and the VA would never have granted it. If you don't claim it you never get it. The VA is obviously never going to look back at all the IU plus 60% awards and do anything unless the vet claims it. I bet there are plenty of vets with 100% schedular and 60% who don't have "S".

Well, my vet husband for one, who is 100% schedular with one rating of 60%, plus two ratings that take him to 70% above the 100% schedular, has filed for it. The VARO sent him back a VCAA notice that said since he is 100% schedular, they "will not" consider him for TDIU, since that appears to be a pre-requisite and changing his status would monetarily benefit him, per Bradley. He is also collecting Social Security disability for umemployability due to all VA rated conditions. We believe that a VCAA notice is not the proper venue to make a rating decision that smacks of finality in its wording, and that also does not include "reasons and bases" for that decision, nor did it include information on appeal rights. We filed an NOD just the same, and argued CUE via Bradley, Acosta and Akles. I'm giving them until December 1st to respond, at which time I'm going to write a letter to the VA General Counsel.

[jbasser]

I have an indication that the VA is processing my request for a SMC "S" claim due to TDIU plus 60%. It is happening fast one way or the other. They owe me two years of retro on this since I should have been awarded "S" in 2008. You know it buggs me because if I did not hear it here I would never have known, and the VA would never have granted it. If you don't claim it you never get it. The VA is obviously never going to look back at all the IU plus 60% awards and do anything unless the vet claims it. I bet there are plenty of vets with 100% schedular and 60% who don't have "S".

Darn it John, you just gave me another idea for a SVR topic. Keep it up sir.

That wsill be a good little chunk of retro.

J

[Philip Rogers]

It's sad but I think you are correct, John. I got one of my vets 100% and they shorted him the SMC for the additionals. We sent a NOD and received a correction to the tune of $11k+, in about a months time!!! They never would have awarded it had we not pointed it out. jmo

pr

I have an indication that the VA is processing my request for a SMC "S" claim due to TDIU plus 60%. It is happening fast one way or the other. They owe me two years of retro on this since I should have been awarded "S" in 2008. You know it buggs me because if I did not hear it here I would never have known, and the VA would never have granted it. If you don't claim it you never get it. The VA is obviously never going to look back at all the IU plus 60% awards and do anything unless the vet claims it. I bet there are plenty of vets with 100% schedular and 60% who don't have "S".

[john999]

VAF

If he is rated as total plus 60% then I don't think he has to be TDIU plus 60%. I think the VA is nitpicking to try and get around an award. The idea is that if a vet is totally disabled and has at least 60% above and beyond that rating he should get "S". This is my take on it. Of course, I don't read English the way the VA does. I don't do math the same way either.

[vaf]

VAF

If he is rated as total plus 60% then I don't think he has to be TDIU plus 60%. I think the VA is nitpicking to try and get around an award. The idea is that if a vet is totally disabled and has at least 60% above and beyond that rating he should get "S". This is my take on it. Of course, I don't read English the way the VA does. I don't do math the same way either.

That's possibly the case, I don't know, but I figure either way if we've asked for whatever scenario best benefits the veteran monetarily, we've covered all bases. Bradley says the VA has to do what is best for the veteran monetarily. Acosta says that IU does not moot eligibility for a total schedular rating and vice versa. Akles says we should not have had to ask for consideration for the SMC(s), the VA should have (brief pause inserted here for laughter) done this automatically.

It makes no sense that a veteran who has lesser ratings at 70% but who is awarded IU and has ratings at least 60% for other body parts or functions above that total rating, is in a better position to qualify for statutory housebound under SMC(s) than the veteran who is schedular 100%, with one rating at at least 60%, and who meets the same conditions for at least 60% beyond that 100% rating. The VARO here in Louisiana is penalizing the schedularly totally disabled veteran with +60% (who in my husband's case is also collecting SS disability based on all VA-rated conditions) because he wasn't classified IU. OK, so classify him IU per Bradley, pay him the SMC(s) retro back to the date he was rated 70% over the schedular 100% (with one condition of that rated at 60%), and let's move on.

No, instead of manning up and denying it through a formal Rating Decision with all the obligations attached, they're trying to slip it in through the first paragraph of the cover letter to the VCAA notice.

So, I have two problems with this. The "decision" and the manner in which they delivered it. I treated it as a CUE in the NOD and if I have to make a major stink about this, I will because it sets a dangerous precedent, denying claims outside of the formal Rating Decision process.

Edited October 25, 2010 by vaf

[Teac]

I don't see how the VA is going to change a veterans status from 100% to TDIU, just to justify an SMC Award.

I was rated 60% for a back injury and awarded TDIU, I had another seperate 60% rating for asthma, I was not awarded the SMC . But under bradley v peake I should have been. ( I have a cue claim in the system)

Later, I received a 100% rating for the asthma/copd , and the TDIU award was revoked but I still have 60% for the back injury. I get A&A because I have shown the need.

Unless a veteran has a conditon that would qualify for IU, how do you justify revoking the 100% rating and granting TDIU? In my case it doesn't matter, I get the SMC either way, but most veterans arn't going to have one condition that can be rated IU, and still another condition that can be rated 100%.