tdiu Two Total Ratings?

[Berta]

They are hard to find-

I posted an opinion here some time ago and forget where-

it was based on how it seemed to me the VA was saving money by awarding TDIU and then SMC at S.

If a vet is 100% per the 100% rating schedule and not extra schedular due to VACO review-

But if VA awards TDIU with different %s for more than one disability-and yet the vet could prove one of them should be 100% per rating schedule- then

that could alter -for multiple disability claims-the proper level maybe of SMC???

I am confused by my own logic here.

I just see the TDIU and/ 100% regs as possibly snookering the vet out of SMC or something-maybe I will find my past post.

BTW my husband also had loss of use of and weakness of extremeties -and that too was part of the SMC CUE.

I think it is important to state here for all -that high levels of SMC depend on documented losses of or loss of use of extremities in most cases.

The VBM gives the most concise definitions of SMC levels and also has a combo section.

It astounds me how vets can fit into very high levels of SMC IF the claim contains the right evidence and if the VA fully comprehends it.

Edited February 2, 2011 by Berta

[Teac]

All of the cases listed below predated the Bradley v. Peake decision of Nov 2008. The va denied my claim to housebound stating that my claim predated Bradley V. Peake. Based on just the few cases I have listed below, the Denial

will not stand at the BVA. Since Bradley v peake was decided in 2008, there are about 50 cases decided in 2010 that cite the bradley v peake decision, and only a couple in 2009.

Berta I understand what your saying and I am going to list a number of cases were the BVA remained cases were the veteran was rated 100% but didn't get the SMC.. However they could or should have been rated TDIU and awarded the SMC..

The Language in one such case decided on Oct 26, 2010 concerning a rating from an Oct 2008 case. In fact is states that a veteran can have a 100% rating and a concurrent TDIU rating... interesting find...

It is noted that the assignment of a 100% rating does not preclude consideration of a concurrent TDIU rating. VAOIG 6-99 ( holding that a grant of a 100 percent schedular rating mooted a claim for

a TDIU rating was withdrawn inNov 2009 in light of the holding in Bradley v. Peake , 22 Vet. App. 280 (2008).

SMC Granted under Bradley V peake on a rating decision dated prior to Mar 2007: http://www4.va.gov/v...es4/1033260.txt

SMC Granted under bradley v peake on a rating decision dated prior to June 2007: http://www4.va.gov/v...es3/1021990.txt

TDIU Granted for purposed of awarding SMC ( Vet had a 100% schedular rating ) radting decision APR 2003 http://www4.va.gov/v...es4/0935536.txt

In the following cases the veterans were rated 100% some were awarded SMC under bradley v peake. Others were 100% but the case was remained for consideration of TDIu for the purpose to award SMC;

http://www4.va.gov/v...es6/0947595.txt

http://www4.va.gov/v...es4/1035427.txt

http://www4.va.gov/v...es2/1019798.txt

http://www4.va.gov/v...es4/1033267.txt

http://www4.va.gov/v...es5/1040128.txt

http://www4.va.gov/v...es3/1021442.txt

ADDED:

I also found one USCOVA CASE No. 08-3079 , Donald B. Gold v Shinseki which addresses award of SMC under Bradley v Peake and the board remained it back to the regional office for consideration of SMC.. IT is interesting in that it states the case does not set precedent. BUt more important is that it is the only case at COVA level concening this issue, and it was decided exactly the same way that most of those at BVA were decided. This inital rating in this case also pre-dated Bradley v Peake by a number of years,.

Edited February 2, 2011 by Teac

[Teac]

http://www4.va.gov/vetapp10/files5/1040128.txt

Now if the va can award a 100% rating and a concurrent TDIU rating as indicated in the above case, it seems to me this would alter the level of SMC

For example I am rated SMC L 1/2 ( 100% rating plus 50%)

I had a TDIU rating for a 60% back injury prior to award of the 100% rating for asthma.. Two seperate disabilities.

If I can show that I am still entitled to the TDIU rating under the Bradley v Peake ruling because the va has to award the highest level of compensation... then

It seems to me that I would be awarded the next level of SMC in my Case that would be SMC M.

Does this seem logical to you?

[Teac]

Just read the VBM 2009 , Page 352 Reference SMC ratings under 38USC 1114(p) Additional independant 50 percent or 100 Percent Disabilities

In some cases a veteran entitled to a SMC rate between (l) and (o) also has an additional service connected disabilities that combine independently to 50 Percent or 100 Percent. In these cases , the disability or veterans SMC rate would be increased a half step for the combined 50% evaluation or one full step for the combined 100% evaluation. The additional single permanent disability or combination of permanent disabilities indepently rated at 50 percent or more will afford entitlement to the next higher intermediate rate, but not above the SMC (O) rate. The additional single permanent disability independantly rateable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate or if already entitled to an rate to the next higher intermedate rate but no rate higher that SMC (O). In the application of these increases in the smc rating, the disability or disabilities independantly rated at 50 percent or more or 100 percent or more must be seperate and distinct and involve different anatomical segements or bodily systems from the conditions establishing entitlement under 38 USCS 1114(l) through (o) or the intermediate rare provision.

So it would seem that while under Bradley v Peake a 100% rating and a TDIU rating can be considered for SMC S..

It seems that a TDIU rating cannot be considered as a 100% rating for a higher level of A&A Like I said when I started I was fishing...

And now I have learned something.. I am not entitled to SMC M but , according to all the BVA cases I am entitiled to Housebound for those years prior to my A&A award.

Because During 2001-2007 TDIU with a seperate 60% rating...

Edited February 2, 2011 by Teac

[jbasser]

Just read the VBM 2009 , Page 352 Reference SMC ratings under 38USC 1114(p) Additional independant 50 percent or 100 Percent Disabilities

In some cases a veteran entitled to a SMC rate between (l) and (o) also has an additional service connected disabilities that combine independently to 50 Percent or 100 Percent. In these cases , the disability or veterans SMC rate would be increased a half step for the combined 50% evaluation or one full step for the combined 100% evaluation. The additional single permanent disability or combination of permanent disabilities indepently rated at 50 percent or more will afford entitlement to the next higher intermediate rate, but not above the SMC (O) rate. The additional single permanent disability independantly rateable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate or if already entitled to an rate to the next higher intermedate rate but no rate higher that SMC (O). In the application of these increases in the smc rating, the disability or disabilities independantly rated at 50 percent or more or 100 percent or more must be seperate and distinct and involve different anatomical segements or bodily systems from the conditions establishing entitlement under 38 USCS 1114(l) through (o) or the intermediate rare provision.

So it would seem that while under Bradley v Peake a 100% rating and a TDIU rating can be considered for SMC S..

It seems that a TDIU rating cannot be considered as a 100% rating for a higher level of A&A Like I said when I started I was fishing...

And now I have learned something.. I am not entitled to SMC M but , according to all the BVA cases I am entitiled to Housebound for those years prior to my A&A award.

Because During 2001-2007 TDIU with a seperate 60% rating...

I think you got it Teac. FIle it.

J

[Berta]

I think Bradley allows a vet to file CUE on the older decision.

I am unaware as to any restrictions in Bradley on either 100% ir TDIU of the medical evidence regarding the other SC disabilities warrants any SMC cponsideration-

nor do I know of any restriction on the retro EED.

Ddnt some one here already succeed under Bradley with a CUE claim and copy of Bradley?

Lots of goodies here for me to consider Teac-

I need to read them all - just wish I had more time to do that now but I dont- --------I will save this page as to those links.