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WAC-Vet75

A Well Founded Argument For Addition Of Ratings In Excess Of 100%

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First off, I apologize for taking so long to composing this, and also for the length of this post. I felt it necessary to address issues, concerning this topic, of adding additional disability ratings in excess of 100% for SMC rating, instead of using the Combined Rating Schedule. Now, I will present it and ask if anyone sees any other issues, in respect to this topic, that needs to be addressed. My responses are in red.

*********************

It is my contention that additional ratings over 100% should not be combined, using the Combined Rating Schedule, but should be added, according to 38 CRF 3.350. Thus a person with a 100% rating, with additional ratings of 10%, 10%, 10%, 10%, 10%, 10%, according to the letter of the law, establishes entitlement to SMC, at thee housebound rate, as long as they also meet the other requirements.

*********************

(From 38 CFR 3.350):

(i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and, (1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, "

This shows the requirements for SMC in respect to this issue: 1) SC disability(ies) 2) Independently ratable 3) separate and distinct from 100% 4) involving different anatomical segments or bodily systems

Exception for 100% plus 100% is TDIU consideration. "additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployables"

*********************

38 CFR 4.25 Combined ratings table : Table I, Combined Ratings Table, results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity"

The "concept" of the combined rating table is to determine the "efficiency" percentage left. Having a rating of 100% gives a 0 efficiency, according to 4.25. To combine additional ratings, over 100%, offers a negative efficiency.

*********************

§ 3.323 Combined ratings. (a) Compensation—(1) Same type of service. When there are two or more service-connected compensable disabilities a combined evaluation will be made following the tables and rules prescribed in the 1945 Schedule for Rating Disabilities.

This goes with 38 CFR 4.25, which does NOT address efficiencies once 0% is reached.

*********************

M21-1. Part I, Appendix A: SPECIAL MONTHLY COMPENSATION UNDER 38 U.S.C. 1114(s) - 38 CFR 3.350(i) TOTAL PLUS 60% OR HOUSEBOUND SMC Code 48 (change 37)

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.

Though the above is not a law, it IS a VA Manual. Note that the 100% rating states "under regular combined evaluation, but is NOT stated for the 60% rating.

*********************

38 CFR 3.350 (f)(4)(i) Where the multiple loss or loss of use entitlement to a statutory or intermediate rate between 38 U.S.C. 1114(l) and (o) is caused by the same etiological disease or injury, that disease or injury may not serve as the basis for the independent 50 percent or 100 percent unless it is so rated without regard to the loss or loss of use.

This references disabilities that may be the result of conditions such as arthritis, or injuries that cause multiple disabilities.

Example: Due to arthritis, a Veteran has LOU of upper and lower extremeties, for which he/she is receiving SMC rating. If that Veteran receives a hip replacement, as a result of arthritis, receives an additional 70% rating due to that hip replacement, the hip replacement not being the cause for the LOU, satisfies the requirement for higher SMC benefits, in accordance with 38 CFR 3.350.

Another example of this: Due to a service connected MVA, a spinal cord injury has left the Veteran without use of both legs, and both arms, as a result of that MVA, also received an elbow replacement DC 5052 rated at 30% and a wrist replacement DC 5053 rated at 20%, neither of which caused the LOU of arms or legs, would not prevent that independent rating of 50%, from being applied in accordance with 38 CFR 3.350 for an increase of SMC benefits.

38 CFR 3.350(e): "(3) Combinations. Determinations must be based upon separate and distinct disabilities. This requires, for example, that where a veteran who had suffered the loss or loss of use of two extremities is being considered for the maximum rate on account of helplessness requiring regular aid and attendance, the latter must be based on need resulting from pathology other than that of the extremities. If the loss or loss of use of two extremities or being permanently bedridden leaves the person helpless, increase is not in order on account of this helplessness. Under no circumstances will the combination of being permanently bedridden and being so helpless as to require regular aid and attendance without separate and distinct anatomical loss, or loss of use, of two extremities, or blindness, be taken as entitling to the maximum benefit. The fact, however, that two separate and distinct entitling disabilities, such as anatomical loss, or loss of use of both hands and both feet, result from a common etiological agent, for example, one injury or rheumatoid arthritis, will not preclude maximum entitlement."

This CLEARLY states that "must be based upon separate and distinct disabilities" is a separate requirement, and can not be included with the wording "independently". As I previously stated, there are other requirements, in ADDITION to the requirement of the rating being "independently ratable". "Involving different anatomical segments, or bodily functions" is self explanatory.. "Combined evaluation rating", reference to the combined rating schedule, nor "disability(ies) with a combined rating" aren't used, yet "independently ratable" is specifically used.

*********************

38 CFR 3.350:

(4) Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above.

The underlined section in the above paragraph, clearly disallows a bilateral rating, combining to 100%, from being used for this requirement. Two of the requirements here are 1) Single permanent disability 2) Independently ratable at 100%. The bilateral factor of the Combined rating table allows for bilateral rating to be used as a single disability. Unless one of the bilateral disabilities is INDEPENDENTLY rated at 100%, the bilateral factor can not be used as it would not be a "single" disability independently ratable at 100%. It would have stated, "a permanent disability". Congress is aware of the bilateral factor, yet chose to specify "single".

*********************

38 CFR 4.26 Bilateral factor. When a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability. The bilateral factor will be applied to such bilateral disabilities before other combinations are carried out and the rating for such disabilities including the bilateral factor in this section will be treated as 1 disability for the purpose of arranging in order of severity and for all further combinations. For example, with disabilities evaluated at 60 percent, 20 percent, 10 percent and 10 percent (the two 10's representing bilateral disabilities), the order of severity would be 60, 21 and 20. The 60 and 21 combine to 68 percent and the 68 and 20 to 74 percent, converted to 70 percent as the final degree of disability.

A Veteran who has been awarded SMC, for LOU of lower extremities, could have a hip replacement DC5054 rated at 70% AND a knee replacement DC 5055, rated at 60%, both fulfilling the other requirements of separate and distinct, different anatomical segments, or bodily function. These two disabilities, according to the Combined Rating Table, would be combined, then using the bilateral rating factor, would be 96.8%, rounded to 100%. Neither disability is independently rated at 100%, and thus does not fulfill the"single" independently ratable part of the requirement.

*********************

*****this is the updated section****

BVA:Citation Nr: 1021990

Decision Date: 06/14/10 Archive Date: 06/24/10

DOCKET NO. 03-25 209

“For purposes of 38 U.S.C.A. § 1114(s), an award of TDIU may satisfy the 100 percent schedular requirement if the TDIU evaluation was, or can be, predicated upon a single disability. VBA Fast Letter 09-33 (July 22, 2009). See Bradley v. Peake, 22 Vet. App. 280 (2008). However, no disability can be considered twice in calculating the percentage requirements to ensure that the prohibition against pyramiding contained in 38 C.F.R. § 4.14. Thus, the additional service-connected disabilities ratable as 60 percent disabling must be separate and distinct from those warranting the TDIU evaluation.

The Veteran is currently service-connected for PTSD, rated as 70 percent disabling effective February 12, 2004; status post left knee replacement, rated as 100 percent disabling from October 19, 2004 and 60 percent disabling since December 1, 2005; residuals of left common peroneal nerve injury, rated as 10 percent from May 15, 1970, 20 percent from June 10, 2002, and 40 percent from July 27, 2005; left knee subluxation rated as 10 percent disabling from June 10, 2002 to October 19, 2004; organic brain syndrome, rated as noncompensable from April 1, 1980 and 10 percent disabling from June 10, 2002 to February 12, 2004; scars of the left eye brow and eyelid, rated as noncompensable from May 15,

1970 and 10 percent from April 17, 2003; and vertical diplopia of the left eye, rated as noncompensable effective June 10, 2002.

At the outset, the Veteran has been awarded entitlement to TDIU, effective June 10, 2002, primarily based upon his service-connected acquired psychiatric disorder. Effective June 10, 2002, the Veteran also met the criteria of having additional service-connected disability independently rating at 60 percent or more (left knee degenerative joint disease rated as 30 percent, left knee subluxation rated as 10 percent, and left common peroneal nerve injury rated as 20 percent). As such, the record establishes the Veteran's entitlement to SMC benefits under 38 U.S.C.A. § 1114(s) effective June 10, 2002.”

Organic brain syndrome, is rated under mental conditions, and thus can not be used in determining entitlement, under 38 CFR 3.350(s) as it must be separate and distinct, involving different anatomical segments or bodily functions. As the requirement states, “single disability” independently ratable, the BVA noted that the TDIU was “primarily based”, meaning that the TDIU rating requirement could well be based on just the single, 70% rating for PTSD. This BVA decision based the additional 60% rating on independently ratable percentages, as required according to 38 CFR 3.350, and not erroneously using the combined rating schedule, for which there is no legal basis to use, in ratings over 100%.

Edited by WAC-Vet75

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WAC,

Check your PM's.

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WAC

I agree..and I think I even mentioned that on "the other board". You were thorough..gee I wish I could use you to write up my EED appeal.

The only comment I have is your use of the word "clearly". Attornies use that almost as much as they use the

word "claimant" or "petitioner". I will have to say that even tho I agree with your interpretation...of course, it does

not matter what I think..or what Vike and Cruiser thinks.

It only matters what the judge thinks...and I have found they dont always think "clearly".

As CC says, "Never Give UP".

You have applied the 5 P's...Proper Preperation Prevents Poor Performance. You looked up case law and did

your homework. I think you will win.

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Broncovet.... thank you. Your post brought tears to my eyes, really. It took me a bit of time to address each issue, forgetting what I wrote in the previous ones, so you are correct, I do over use "clearly". Rereading it, I had to laugh...,, It's almost like when I try to say something (speaking), and I end up only repeating the same word, ugh.

This has become very personal for me, not because of my claim, but because I realize how many others (many no longer with us) are/were denied what is rightfully due them.

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Here is an update, BVA case, that should be used with the "well founded argument"......I posted the wrong link... looking for it now! UGH. Ok, here ya go http://www4.va.gov/vetapp10/files3/1021990.txt

BVA:Citation Nr: 1021990

Decision Date: 06/14/10 Archive Date: 06/24/10

DOCKET NO. 03-25 209

"For purposes of 38 U.S.C.A. § 1114(s), an award of TDIU may satisfy the 100 percent schedular requirement if the TDIU evaluation was, or can be, predicated upon a single disability. VBA Fast Letter 09-33 (July 22, 2009). See Bradley v. Peake, 22 Vet. App. 280 (2008). However, no disability can be considered twice in calculating the percentage requirements to ensure that the prohibition against pyramiding contained in 38 C.F.R. § 4.14. Thus, the additional service-connected disabilities ratable as 60 percent disabling must be separate and distinct from those warranting the TDIU evaluation.

The Veteran is currently service-connected for PTSD, rated as 70 percent disabling effective February 12, 2004; status post left knee replacement, rated as 100 percent disabling from October 19, 2004 and 60 percent disabling since December 1, 2005; residuals of left common peroneal nerve injury, rated as 10 percent from May 15, 1970, 20 percent from June 10, 2002, and 40 percent from July 27, 2005; left knee subluxation rated as 10 percent disabling from June 10, 2002 to October 19, 2004; organic brain syndrome, rated as noncompensable from April 1, 1980 and 10 percent disabling from June 10, 2002 to February 12, 2004; scars of the left eye brow and eyelid, rated as noncompensable from May 15,

1970 and 10 percent from April 17, 2003; and vertical diplopia of the left eye, rated as noncompensable effective June 10, 2002.

At the outset, the Veteran has been awarded entitlement to TDIU, effective June 10, 2002, primarily based upon his service-connected acquired psychiatric disorder. Effective June 10, 2002, the Veteran also met the criteria of having additional service-connected disability independently rating at 60 percent or more (left knee degenerative joint disease rated as 30 percent, left knee subluxation rated as 10 percent, and left common peroneal nerve injury rated as 20 percent). As such, the record establishes the Veteran's entitlement to SMC benefits under 38 U.S.C.A. § 1114(s) effective June 10, 2002."

Organic brain syndrome, is rated under mental conditions, and thus can not be used in determining entitlement, under 38 CFR 3.350(s) as it must be separate and distinct, involving different anatomical segments or bodily functions. As the requirement states, "single disability" independently ratable, the BVA noted that the TDIU was "primarily based", meaning that the TDIU rating requirement could well be based on just the single, 70% rating for PTSD. This BVA decision based the additional 60% rating on independently ratable percentages, as required according to 38 CFR 3.350, and not erroneously using the combined rating schedule, for which there is no legal basis to use, in ratings over 100%.

Edited by WAC-Vet75

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