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".

[Berta]

Yeah

"they merely denied the claim in the opening statement of the VCAA notice."

That entire VCAA Notice might be legally incorrect.

It is the VCAA notice that is specifically to tell the veteran what evidence they need-not to deny right off the bat.

My last claim took over 6 years because of a VCAA violation.

The reps I had (to include their state director) did all they could to make me believe there was no VCAA violation.

It was quite obvious and the first thing I griped about on my I-9 form.

I knew what evidence it should have asked for so that is what I sent to them.I did not send them a response form with it because they never sent one to me.It was not even listed as an enclosure in the VCAA letter I got and no rep picked up on that point.

VA ignored my evidence because I did not formally respond to the VCAA letter with it.They kept saying I failed to respond to the VCAA letter with the response form I never got.

Also widow's claims have special VCAA considerations ,specifically the Hupp decision they must comply with.None of that was in the letter I got.

The BVA took note of this VCAA error but I had mitigated the damage with evidence and they awarded.

After the case went to the BVA I ran into a different rep on my POA who for some reason was at the office temporarily and I showed him the VCAA letter copy in my POA file. He immediately said "Hey this isnt right at all!" and then I showed him copy of a letter from the state director in the file telling me this letter WAS a proper VCAA letter.He was dumbfounded.

Do you have a vet rep and has he/she questioned the actual VCAA letter?

Edited October 25, 2010 by Berta

[john999]

What kills me is that this will take time and VAF's husband does not get interest on the money that is denied. If the VA just had to pay interest on claims in which they deny due process that would end this, but that won't happen. Now VAF has to file an appeal. When they screw up a VCAA letter are then not denying due process?

[Teac]

You must have overlooked my statement that my husband was deemed unemployable by the SSA due to all service-connected conditions, including the 60% rating he had that contributed to his schedular 100% rating. He just happened to get sick enough to qualify for 100% schedular disability before he had to apply for IU status. It was an outcome of timing and semantics, both of which I would argue are not grounds to discriminate between granting SMC(s)benefits to a lesser rated IU veteran with at least 60% beyond total disability statutory housebound benefits, but not similarly granting those benefits to a veteran who could meet that same IU status, but will not be considered because he happened to receive a schedular rating before he had to apply for IU status, and who since that time has been awarded 70% disability beyond the 100% schedular status.

Do you see what I mean?

I fully understand what your saying, and I have read in one BVA case,

The board notes that the TDIu rating was discontinued effective Apr 8, 2003, the date the veteran's combined rating was increased to 100 percent disability. However to deny this claim on the basis that the veteran no longer has a disability rated as totally disabling under 38 CFR 4.16 would lead to an absurd result, that result being that he would not be entitled to a higher compensation rating even though one disability still renders him unembloyably and other disabilities have worsened such that a 100 percent combined schedular rating results. The board does not believe that the bradley decision and /or the statute intended such an absurd result.

The board then found the veteran to be totally disabled base on TDIU and additional disabilities seperately rated at 60 percent. This even though the veteran had lost TDIU because of a 100% rating.. See BVA citation nr: 0935536 , Docket # 09-26 705 dated 10/02/09

What I was stating is that I couldn't think of a senerio where this could happen. But apparently it has happened and in this case the BVA corrected it.....

This was also discussed in Bradly v Peake.... so the va is in agreement with you to a point.

But in your case the veteran was never rated TDIU, and to say he could have been is conjecture. In my opinion, what you are saying is the va needs to do is to go back and look at the record to determine if he should have been rated TDIU sometime before he was awarded the 100% schedular rating. I doubt the va would even consider this at the regional level, but assuming they would, this would open up a whole new can of worms and every veteran that was ever rated 100% would want the same consideration, that is an "educated guess" as to rather they should have received TDIU anytime prior to an award of 100%, just so they could get the SMC.... I think such cases are going to be determined on a case by case basis and and only approved beyond the Regional offices. And I really don't think any veteran is going to win such a case simply because there is no sure way of knowing if a veteran should have received IU prior to any 100% schedular rating, especially if there was never a request or implied claim for IU. The va in my opinion will state that since TDIU was never awarded, to begin with , that the veteran would not have been entitled to the SMC anyway.

Edited October 25, 2010 by Teac

[Teac]

The VA wants you to believe the reference made from the United States Code section 114. The VA wrote their little tidbit to say 100 percent plus 60 when the BOSS which is the USC not the CFR was written as total plus 60. That is the issue.

J

I understanf the issue fully, I am one of those veterans that the va shafted in that I was rated 60% for a back injury and was awarded TDIU, and still had a seperate 60% rating for asthma, but never received the SMC. I presently have a CUE claim in the system and I think I am entitled to almost $19 K in back compensation.

However, in my case I actually was rated TDIU unlike the case Vaf is asking about; And in my case I went on to a 100% rating and was also awarded A&A while I still holding the 60% rating that led to the IU award.

I don't know what the va will do in Vaf's case , but in my opinion the claim does not have merit since the veteran never requested nor appalently was their an implied claim for IU to begin with. I just don't see the VA going back to a time prior to the award of 100% , unless there is something so clear in the record thay indicates the veteran was due IU. Vaf even stated that he happened to get sicker and received the 100% award prior to him even requesting ( or considering ) any IU award. Hindsight is 20/20 but va claims don't work on hindsight.

[Teac]

I don't see how the VA can deny a claim with a VCAA letter. More BS from the VA. They probably think you won't follow-up and fight this. When they do these things no one ever gets punished. The VA has a problem with due process.

I hate to be a party pooper.. but I understand how they can use the VCAA to deny a claim.....

The Secretary is not required to assist a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim.

In my opinion since the va was never asked to considered an IU award in Vaf's case, and since 100% was awarded prior to any IU claim the va is saying that such a claim after the fact is moot, and therfor they can deny a claim under the VCAA . At least this is how I under stand the situtation.

Veterans Claims Assistance Act

The purpose of the VCAA is “to amend title 38, United States Code, to reaffirm and clarify the duty of the Secretary of Veterans Affairs to assist claimants for benefits under the laws administered by the Secretary, and for other purposes.” VCAA, 114 Stat. 2096; see Mason v. Principi, 16 Vet. App. 129, 132 (2002) (“The VCAA, among other things, eliminated the well-grounded-claim requirement and amended VA’s duty to notify claimants and their representatives of any information or evidence necessary to substantiate their claims.”).

Upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of that notice, the Secretary shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary, in accordance with section 5103A of this title and any other applicable provisions of law, will attempt to obtain on behalf of the claimant. <BR style="mso-special-character: line-break"><BR style="mso-special-character: line-break">

Section 5103A of title 38, United States Code, titled, “Duty to assist claimants,” details the type and manner of assistance VA must provide to claimants. See 38 U.S.C. § 5103A(a)(1), (b), ©, and (d). The applicability of the duty to assist is addressed in subsection (a), which states in pertinent part:

(a) Duty to assist. (1) The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary. (2) The Secretary is not required to assist a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim.

38 U.S.C. § 5103A(a); see also 38 C.F.R. § 3.159(b)©.[1] The VCAA defines “claimant” as “any individual applying for, or submitting a claim for, any benefit under the laws administered by the Secretary.” 38 U.S.C. § 5100.

<BR clear=all>[1] Implementing regulations for the VCAA are set forth in 38 C.F.R. § 3.159(b), ©. The information published with this final rule describes the scope and applicability as follows:

As indicated by the proposal that these regulations be contained in 38 C.F.R. Part 3, this final rule applies only to claims for benefits that are governed by part 3. These benefits include compensation, pension, dependency and indemnity compensation, burial benefits, monetary benefits ancillary to those benefits, and special benefits.

Department of Veterans Affairs Assistance in Developing Claims, 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001) (codified at 38 C.F.R. § 3.159).

[Pete53]

I don't care what the VA says about anything. Unless you ask for it the chances are piss poor that the VA will give you anything. Best to cite the AR's or regs that govern also.