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".

[john999]

When the VA uses the word "reasonable" that is open to interpretation. They VA could say NO a hundred times and I would still file the claim, and appeal if I must. The ruling on IU and "S" seems weird to me from logical point of view. If you are total plus 60 why should it make a difference how you get there. That was the point of Bradley v Peake to blow Schedular 100% plus 60% out of the water. Total is total no matter how you get there, and reasonable minds can agree or disagree but this point needs to be explored in the only way possible which is to appeal any denials right to the court. When the VA uses the word "reasonable" it usually means you, the vet, are unreasonable and they, the VA, are reasonable. I disagree with that in a big way.

[Teac]

This is just my opinion based on what I have read about Bradley v peake.

Bradley v peake does not say if a veteran is rated 100% and can't get an SMC , then give that veteran IU and the SMC.

I don't want to burst any bubbles really I don't, but the va is not going to go back and look at every case were a veteran is rated 100% without an SMC, and try to re-rate the veteran under IU just to get the SMC.

I think a veteran is going to have to claim CUE and prove not that they could have gotten IU if it was asked for , but that they had IU and would have been awarded the SMC based on an additional 60% rating if only they had not been awarded a 100% rating.

We can all wish and hope, and we can all submit claims but in our hearts we understand what bradley v Peake states... and fighting for something just because you don't like the rule isn't going to change facts.

Finally as I said before, just because a veteran states they would have qualified for IU, prior to their award of 100% isn't goin to cut it. VA doesn't award claims based on what could have been only what is,,,, and if the veteran never asked for IU to begin with, they don't even have a valid arguement to make.

As it stands there may very well be hundreds of veterans that were rated TDIU and should have been awarded the SMC based on the additional 60%. There may also be some ( but fewer) veterans ( in my shoes) who had IU and 60% in addition and who now have a 100% rating,, and were screwed out of the SMC.

Veterans, who never had or never submitted a claim for IU in my opinion are not going to get re-rated now just to get an SMC. The va doesn't do business that way, nor would they have a valid claim of cue.

Not saying someone should not submit the claim, just saying why waste time and effort if you know in your heart that your not entitled.

[jbasser]

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.

We seem to have a misconception that IU is a benefit we have to request or file for.

There is no rateable disability called IU. It is a procedural benefit that is outlined in the M21 as a benefit if the Veteran meets the requirements. Claims for IU are actually claims for increase of a current disability. Housebound or SMC S is also of the same nomenclature.

J

[Teac]

We seem to have a misconception that IU is a benefit we have to request or file for.

There is no rateable disability called IU. It is a procedural benefit that is outlined in the M21 as a benefit if the Veteran meets the requirements. Claims for IU are actually claims for increase of a current disability. Housebound or SMC S is also of the same nomenclature.

J

I don't agree with you, technically you may be correct but I see it differently after working as a Service Officer

Actually, 99% of the time the veteran must ask for TDIU by submitting VA Form 21-8940, “Veteran’s Application for Increased Compensation Based on Unemployability”

Without requesting TDIU it isn't likely to be awarded.

http://www.index.va.gov/search/va/va_search.jsp?QT=unemployability+form&

SMC should be automatic but many times are not....

Edited October 26, 2010 by Teac

[jbasser]

If that is the case then the RO's are not doing their jobs now, Are they. This is just one of many issues that adds to the backlog of claims.

If they followed the M21 and used it as a guideline like they were supposed to do we wouldnt be having this discussion.

The tools are there, they are not being used. Some folks do but not enough to make a difference.

J

[Teac]

If that is the case then the RO's are not doing their jobs now, Are they. This is just one of many issues that adds to the backlog of claims.

If they followed the M21 and used it as a guideline like they were supposed to do we wouldnt be having this discussion.

The tools are there, they are not being used. Some folks do but not enough to make a difference.

J

I guess it depends on what you think their job is. I personally don't think their job is to consider TDIU every time a veteran asks for increased disability rating. Really, why would they consider IU unless there was something in the record that indicated the veteran could not work. As to the SMC that is a different story, Veterans should not have to ask for any SMC, and all to often a veteran doesn't get the SMC he is entitled too and doesn't even know it.

anyway didn't mean to take the thread to a side issue.