WAC-Vet75 Posted February 22, 2011 Author Share Posted February 22, 2011 I have read through the M21, 38CFR, USC 1114, and I found NOTHING that states disability ratings, over the initial 100%, are to be combined using the VA's combined rating schedule to yield a combined evaluation for SMC. Anyone with a rating of 100% for a single disability (including TDIU), and an additional 60% rating for SC disability(ies) MUST be given SMC (s) in accordance with 38 USC 1114 (s). I am now wondering if my claim for Lupus and A&A may be prolonged in the rating board due to this CUE. Being 100% TDIU, with an additional 70% (not combined) would have made me eligible for SMC (s). I have to call the PVA up tomorrow, as I just realized somewhere my MS rating of 30% disappeared, or I neglected to add it.! With the 30% for MS, added to the other 70%, gives me a separate 100% (not combined), and combined gives me an additional 90%. Either way, I should have been granted SMC (s), yet it was never even considered! Link to comment Share on other sites More sharing options...
WAC-Vet75 Posted February 22, 2011 Author Share Posted February 22, 2011 I have read through the M21, 38CFR, USC 1114, and I found NOTHING that states disability ratings, over the initial 100%, are to be combined using the VA's combined rating schedule to yield a combined evaluation for SMC. Anyone with a rating of 100% for a single disability (including TDIU), and an additional 60% rating for SC disability(ies) MUST be given SMC (s) in accordance with 38 USC 1114 (s). I am now wondering if my claim for Lupus and A&A may be prolonged in the rating board due to this CUE. Being 100% TDIU, with an additional 70% (not combined) would have made me eligible for SMC (s). I have to call the PVA up tomorrow, as I just realized somewhere my MS rating of 30% disappeared, or I neglected to add it.! With the 30% for MS, added to the other 70%, gives me a separate 100% (not combined), and combined gives me an additional 90%. Either way, I should have been granted SMC (s), yet it was never even considered! Correction... combined not 90%....70% combined (fingers go where they want at times!!!) Link to comment Share on other sites More sharing options...
WAC-Vet75 Posted February 22, 2011 Author Share Posted February 22, 2011 USC 1155 The Secretary shall adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. The schedule shall be constructed so as to provide ten grades of disability and no more, upon which payments of compensation shall be based, namely, 10 percent, 20 percent, 30 percent, 40 percent, 50 percent, 60 percent, 70 percent, 80 percent, 90 percent, and total, 100 percent. The Secretary shall from time to time readjust this schedule of ratings in accordance with experience. However, in no event shall such a readjustment in the rating schedule cause a veteran's disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran's disability is shown to have occurred. Now, reading this, it clearly shows "The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations." this statement gives a basis for sound legal argument for ratings in excess of 100%, to become cumulative in SMC ratings. I've been reading the COVA cases, and has yet to find any that has presented with this argument. Has anyone found any cases that were heard on the argument that ratings for SMC increases, were or were not cumulative in excess of 100%? Link to comment Share on other sites More sharing options...
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