ptsd Bradley V Peake? Smc S

[Philip Rogers]

WAC-Vet75 - is this from M-21??? If it is, could you please post a link, as this is just what I need?? I wish I had it, the other day, when the VA called about my claim. From what I read the 60% should be using regular math and they are trying to deny me stating I only have 50% because they used the combined ratings chart. Thanks!!

pr

Since VA regulations already state against pyramiding, a disability rated at 100% (rated or TDIU) would be separate (or independent) of any other disability rating. You could not get 100% for MS, then get rated separately, for LOU of lower extremities due to MS, but you can be rated separately for each disability MS causes.

The reasoning for the combination chart is, because a Veteran can not be rated more than 100% (0 percent efficiency), hence SMC. Once 0% efficiency is established, to combine additional ratings would be penalizing the Veteran. The combined rating chart only goes to 99%, and once that is reached how can they justify reusing it for additional disabilities?

Reading the following, it clearly states, "cite disability rated 100% under regular combined evaluation" for the first part of the requirement, yet it only states "cite disability(ies) establishing entitlement", not "cite disability(ies) establishing entitlement under regular combined evaluations". The wording "and additional service-connected disability(ies) of _____, INDEPENDENDLY ratable at 60 percent or more....." clearly states ADDITIONAL, which would prevent pyramiding. Independently ratable at 60%, but it does not state "under regular combined evaluations", may well establish a CUE for Veterans rated 100%, plus, for a few SMC ratings!

SPECIAL MONTHLY COMPENSATION UNDER 38 U.S.C. 1114(s) - 38 CFR 3.350(i)

TOTAL PLUS 60% OR HOUSEBOUND

SMC Code 48

S-1 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of (*) rated 100 percent and additional service-connected disability(ies) of (**) , independently ratable at 60 percent or more from (date) .

S-2 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of (*) rated 100 percent and being housebound from (date) .

*Cite disability rated 100 percent under regular combined evaluation.

**Cite disability(ies) establishing entitlement.

SPECIAL MONTHLY COMPENSATION UNDER 38 U.S.C. 1114(p) -

38 CFR 3.350(f)(3), (f)(4), AND (f)(5)

ADDITIONAL INDEPENDENT 50 OR 100 PERCENT DISABILITY OR DISABILITIES OR

LOSS OR LOSS OF USE OF THREE EXTREMITIES

SMC Code - #

P-1 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (p) and 38 CFR 3.350(f)(3) at the rate intermediate between subsection (*) and subsection (*) (or) (equal to subsection (*)) on account of (**) with additional disability(ies), (**) independently ratable at 50 percent or more from (date) .

P-2 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (p) and 38 CFR 3.350(f)(4) at the rate intermediate between subsection (*) and subsection (*) (or) (equal to subsection (*)) on account of (**) with additional disability, (**) independently ratable at 100 percent from

(date) .

P-3 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (p) and 38 CFR 3.350(f)(5) at the next higher rate or intermediate rate of subsection (*) due to the loss of three extremities from (date) .

*Cite applicable subsection(s) of 38 U.S.C. 1114. **Cite entitling disability or disabilities.

#Use applicable codes from section VII.

[WAC-Vet75]

WAC-Vet75 - is this from M-21??? If it is, could you please post a link, as this is just what I need?? I wish I had it, the other day, when the VA called about my claim. From what I read the 60% should be using regular math and they are trying to deny me stating I only have 50% because they used the combined ratings chart. Thanks!!

pr

http://www.benefits.va.gov/warms/M21_1.asp It took me a little bit to find it again....

I am presently getting my CUE together, if they do not grant it on my contention that I was HB back in 93, when I was granted 100% TDIU (70% PTSD), then when I received my additional ratings totally 70% independently (54% combined rating) they never considered SMC. The combined rating chart is used to show "efficiency" http://www.benefits.va.gov/warms/bookc.asp Click on subpart A 4.25 It clearly states "efficiency"..once you are at 0 efficiency, how in the world can they use the combined rating to make you negative efficiency... wouldn't that be the same as the Veteran taking away the "efficiency" of another person?

I am anxiously awaiting any and all responses to what I've posted..........

[Philip Rogers]

WAC-Vet75 - Thanks, that's just what I needed. I'll get it done the first part of the week and deliver it, later this week, when I have a scheduled appt. Thanks you very much!!! I sure can't see how they can go lower than "0" efficiency. I think they were just trying to mislead me, much like they do when they deny TDIU quoting 4.16(a) but not mentioning 4.16(b). We're learning!

pr

http://www.benefits.va.gov/warms/M21_1.asp It took me a little bit to find it again....

I am presently getting my CUE together, if they do not grant it on my contention that I was HB back in 93, when I was granted 100% TDIU (70% PTSD), then when I received my additional ratings totally 70% independently (54% combined rating) they never considered SMC. The combined rating chart is used to show "efficiency" http://www.benefits.va.gov/warms/bookc.asp Click on subpart A 4.25 It clearly states "efficiency"..once you are at 0 efficiency, how in the world can they use the combined rating to make you negative efficiency... wouldn't that be the same as the Veteran taking away the "efficiency" of another person?

I am anxiously awaiting any and all responses to what I've posted..........

[WAC-Vet75]

WAC-Vet75 - Thanks, that's just what I needed. I'll get it done the first part of the week and deliver it, later this week, when I have a scheduled appt. Thanks you very much!!! I sure can't see how they can go lower than "0" efficiency. I think they were just trying to mislead me, much like they do when they deny TDIU quoting 4.16(a) but not mentioning 4.16(b). We're learning!

pr

I hope it helps you!! With my CUE, I am going to refrain from mentioning Bradley v Peake, as I do not want them to try and use the date of that opinion/decision.

I don't know if I'm way off base in my contentions, and I hope someone may chime in to let me know if I am. Reading the VA's reasoning for the combined ratings, it just makes no sense to rate someone 0% efficiency, then use the same combined rating schedule for efficiency to rate new disabilities! From my understanding, SMC's have been in effect since PL 73-2, July 1, 1933, FOR A REASON, and that being, no Veteran can be rated higher than 100%, because you can not be less efficient then 0%!

[jbasser]

IU is one condition service connected at 60 percent or a combination of 70 percent with one at 40 percent.

The main reason for Bradley is that the 114 states total plus 60. Total is the key word as someone put 100 percent in the part 3.

J

[WAC-Vet75]

IU is one condition service connected at 60 percent or a combination of 70 percent with one at 40 percent.

The main reason for Bradley is that the 114 states total plus 60. Total is the key word as someone put 100 percent in the part 3.

J

My TDIU was based on one 70% rating, not from a combination, as I had written to the Adjudication Officer, directly, stating that I went through long periods of not being able to leave my home, and when able to leave the home I could not go unaccompanied (I had medical issues that required attention), I do believe that letter inferred housebound, even though I did not specifically request it. Of course, I had no idea there was such a thing as SMC s for housebound at the time! I stated that I knew of no job positions that would allow me to remain in my own home, not have to associate with others, and that many times I was unable to even answer the front door. This was all in the early 90's, long before the internet became what it is today. Now, due to MS, I would find it difficult to work via the internet on a consistent basis, and earn a substantial living. Wow, this thread is really depressing.....facing these realities really makes me feel useless. I would so gladly give back every penny, give up all claims, if I could just be me again, and I know many of you feel the same way.

Bradley v Peake over rides this VA General Counsel Opinion, and should help get SMC s for a number of Veterans. This opinion also goes directly against 38 USC 1114 (s) 2, by stating that one must have additional SC disabilities ratabe at 60% or more, in order for the SMC s rate to be paid!

CFR § 4.30) qualifies as the “single” 100 percent service-connected disability. However, VA General Counsel Opinion VAOPGCPREC 6-99 (June 7, 1999) held that entitlement to SMC at the “s” level must not be based on a total disability rating awarded by the working of 38 C.F.R. § 4.16 (Individual Unemployability). In order for the (s) rate to be payable, however, the veteran must have additional service-connected disabilities independently ratable at 60 percent or more. These additional disabilities must not have been part of the basis under which the total disability rating was granted.