tdiu Two Total Ratings?

[Teac]

For sake of discussion....and opinions

I am rated as:

100% Asthma/COPD

60% DDD w/ Left foot drop

30% cataract with/ pigmentary gloucoma and optic nerve damage

10% sinusitis

10% rhinitis

10% Knee limitation of motion

10% Knee lateral instability

10% hemorrhoids

10% tinnitis

0% Hearing

0% eppidmittis

I have A&A SMC L 1/2 ( because of a 100% rating and seperate 50% rating)

I have one K award loss of use of left foot

Prior to award of 100% I had TDIU for DDD. When I was awarded 100% for my lung condition TDIU was revoked.

In reference to Bradley V Peake a BVA decision states:

The Board notes that the TDIU rating was discontinued

effective April 8, 2003, the date that the Veteran's combined

disability rating increased to 100 percent schedularly.

Therefore, the Veteran currently does not have a TDIU.

However, the Board finds that to deny this claim on the basis

that the Veteran no longer has a disability rated as totally

disabling under 38 C.F.R. § 4.16 would lead to an absurd

result, that result being that he would be entitled to a

higher special monthly compensation rating, as explained

above, so long as his combined rating remained at 90 percent

or less, but would not be entitled to a higher compensation

rating even though one disability still renders him

unemployable 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 and finds that the Veteran has

a single service-connected disability ratable as totally

disabling based on individual unemployability and additional

disabilities separately ratable at 60 percent.

My queston:

The VA has said a veteran cannot be rated 100% and TDIU at the same time... But under bradley v Peake the BVA found to deny SMC S, because the veteran now has a

100% rating v TDIU would be wrong. The board therefor awarded TDIU for the purpose of awarding SMC S ( even though the veteran was rated 100%)

Ok So since I am rated 100%, and have A&A...(at Level L1/2) Should I not be awarded A&A ( at Level M) since I also am/was entitled to a seperate TDIU rating for my back injury...

In other words if the BVA awards TDIU (when the veteran is already rated 100% ) for the purpose of awarding SMC S than;

Why can I not have a seperate TDIU rating and a seperated 100% rating to get a higher level of A&A?

Any comments...

Edited February 1, 2011 by Teac

[jbasser]

You have been awarded Aid and Attendance. L 1/2 plus a K for the foot drop.

If it had not been for the A&A you would be at smc S plus the K award. You are making 500 more per month than someone with SMC S.

What are you trying to acomplish?

J

Edited February 1, 2011 by jbasser

[Berta]

"Ok So since I am rated 100%, and have A&A...(at Level L1/2) Should I not be awarded A&A ( at Level M) since I also am/was entitled to a seperate TDIU rating for my back injury."

That is the same basis of my SMC accrued CUE claim.

My husband by medical evidence should have been

SC 100% PTSD (granted in 1997)

1151 SC at 100% for CVA denied SMC in 1997 but the CVA was documented as 1151 and under FTCA

1151 SC at 100% for IHD denied SMC in 1997 "" "" IHD also documented as 1151 in 2 Peer Reviews FTCA.

1151ers get SMC consideration as well as direct SCers.

April 2009 BVA award

100 SC PTSD established in 1997

DMII ( VA refuses to rate and

CVA and

IHD all due to AO exposure.Direct SC death trumping the 1151 FTCA death.

Claim at Nehmer -Phila-

So I see what you mean quite well-

I have asked for SMC "M" Level as accrued.

3 100% SCs plus A & A equals M award. sent them the M21-1MR reg because I could not find ANYWHERE what 3 SCs at 100 % plus A & A would generate.

In your case you have 2 100% SCs and are at L 1/2 so one step away from M.

I think the key to M is the A & A award.Whether 2 or 3 SCs if the veteran qualifies for A & A.

Forthe A & A claim I had to pull out lots of stuff that was not technically in the VA med recs- such as day treatment records, SSA awards etc etc.

Even my husband's drivers license was used

and I also gave personal statements to support those parts of the A & A regs that I could fulfill wth evidence in VA;s possession during my husbands lifetime.

One incident was really funny but it also supported the A & A.

Another incident as to calling my COngressman to get him admitted when they refused to admit (all documented in his med recs) him wasn't funny at all but it had to do with the eidence I needed for the A & A regs.

Do you have any other SC ratings?

You dont have to fulfill every single part f the A & A criteria -just enough to prove you cannot safety be left on your own for periods of time.

One reason my husband was in day treatment and the VA van picked him up and returned him home- is that I couldnt handle the farm business and leave him alone too long in the house.

He would forget he had turned on the stove and walk away from it.He had documented memory problems from his CVA. Also he could no longer drive.

He could not handle change or write a check.He got lost during the PTSD Inhouse program in Buffalo.Lckily he got an operator to call me but he could not see (due to CVA) the street signs or signs so I could call police to find him and no one would help him when he asked them where he was at? This was documented in his Buffalo records.

Due to his IHD he had to stop and catch his breathe as soon as he left the VAMC because the PTSD vets in the program had a trip and he lost soight of where they went.

These are the things that help vets attain A & A.

They also consider the statements of the caretaker.

[Berta]

Will this decision help?

http://www4.va.gov/vetapp07/files2/0718055.txt

I need to give this a good read too- there arent too many SMC M decisions at BVA.

[Teac]

You have been awarded Aid and Attendance. L 1/2 plus a K for the foot drop.

If it had not been for the A&A you would be at smc S plus the K award. You are making 500 more per month than someone with SMC S.

What are you trying to acomplish?

J

I am not really trying to accomplish anything at the moment , I am fishing.... so to speak.

Right now I have a nod under Bradley v peake where when I was TDIU I should have been awarded housebound because at the time I had a seperate 60% rating... when I did the NOD.. upon research I learned of the language the VA used

in the case I cited in the inital post. That is the va awarded SMC S to the veteran because at one time he had TDIU, and it was revoked for a 100% rating. under the 100% rating he could not get the housebound rating because he no longer had the additional seperate or combined 60% rating. In the doing this BVA awarded the Veteran TDIU just for the sole purpose of awarding SMC S.

In my case I once had a TDIU rating for DDD, it was revoked when a 60% rating was increased to 100% for my asthma/COPD. Prior to the 100% rating I should have received housebound, but I never did . Fast foward I was able to show that I needed A&A, because I am in a wheelchair, and on oxygen. I can not do many of the things necessary to care for myself, so I was awarded A&A at L 1/2 because I have a seperate 50% rating.

If you consider what the VA did, then perhaps any vereran who once had a TDIU award but lost it due to a 100% schedular rating , in reality has two 100% awards.. if this is the case than instead of A&A at L 1/2, Maybe I am entitled to A&A at M

so as I said I am fishing for opinions....

[Teac]

Will this decision help?

http://www4.va.gov/v...es2/0718055.txt

I need to give this a good read too- there arent too many SMC M decisions at BVA.

Berta I read this real close and it concerns a 100% rating and and award of A&A at L 1/2 , and a K award.. but it doesn't actually address an SMC at M. so it doesn't really help in my situtation..

Thanks , I keep looking as well but anyting you think or any BVA cases you find, that might help support my situtation is appreciated..