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Smcers Pr,john,chulai,rakk Etc

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Berta

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I found this case while answering a post by Chu Lai.

"Additionally, while the total disability requirement must be met

by a single disability, the 60 percent requirement may be met by

applying the combined rating of the Veteran's remaining

disabilities. See Bradley v. Peake, 22 Vet. App.

280 (2008) (noting that "combined ratings to satisfy the second

requirement but not the first"). "

http://www4.va.gov/vetapp10/files3/1026621.txt

Maybe someone else has found this by now-and this case obviously is after Bradley decision.

Are they saying if you have 100% and not TDIU then the VA can combine additional SC to meet the 60 for the 100% plus 60 SC "S" award?

Since the premise of TDIU says Total disability due to individual unemployabilty-should TDIU vets file for and request 100% instead of the TDIU?

Would that make sense?

I have always had the feeling that SMC can be manipulated by the VA to their favor-

and maybe the key to that is in fact that many TDIU vets should be 100% vets but as long as they are deemed TDIU they would need qualify for additional independent 60% SC for "S" unless they can meet the housebound requirements for "S" instead.

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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Berta

I don't understand your point.. since this case concerns Special monthly Pension, and has nothing to do with Bradley v peake.. or did I miss something?

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Right -this was a pension claim and Bradley was direct SC but the BVA said:

"Additionally, while the total disability requirement must be met

by a single disability, the 60 percent requirement may be met by

applying the combined rating of the Veteran's remaining

disabilities. See Bradley v. Peake, 22 Vet. App.

280 (2008) (noting that "combined ratings to satisfy the second

requirement but not the first"). "

Is it possible pension claims have a different SMC criteria than SC claims?

If so why did the BVA even mention Bradley?

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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Berta said,

Are they saying if you have 100% and not TDIU then the VA can combine additional SC to meet the 60 for the 100% plus 60 SC "S" award?

This is the way I get it too. One problem I see with Bradley Vs Peake is because TDIU is often denied as "moot" whenever the Vet qualifies for 100%...but it would not necessarily be "moot" in that the Veteran would qualify for SMC under Bradley, if they WERE awarded TDIU and 100%. In my case, the VA denied SMC and awarded SMP "housebound". (with no compensation). Their theory was that I met Bradley vs Peake "housebound" 100 plus 10, plus 10, plus 50, but the 50 percent was for non service connected conditions, so that meant that I do not get SMC for housebound, but get SMP for housebound and no compensation, because SMP is less than 100% total, and I get the greater of the two, but cant get both.

Since the premise of TDIU says Total disability due to individual unemployabilty-should TDIU vets file for and request 100% instead of the TDIU?

The reverse would also apply...Should 100% Vets apply also for TDIU? Unfortunately, a 100% Vet who applied for TDIU would almost automatically denied as "moot". It appears that TDIU opened up a whole bunch of legal challenges, not the least of which is WAC's.

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I agree that this BVA decision maker seems to be confusing Pension with Bradley vs Peake, which have nothing to do with each other.

However, I do not think this BVA decision maker is unique, because the regulations kind of intertwine Pension and Compensation, especially when addressing "housebound".

It seems there are TWO "housebounds".

One for pension

and one for Compensation, which means SMC.

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Berta

I see the point you are making and I don't know the answer. I believe that the disability that makes you total must be a single disability be it TDIU or schedular. I could be wrong.

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."Additionally, while the total disability requirement must be met

by a single disability, the 60 percent requirement may be met by

applying the combined rating of the Veteran's remaining

disabilities. See Bradley v. Peake, 22 Vet. App.

280 (2008) (noting that "combined ratings to satisfy the second

requirement but not the first"). "

http://www4.va.gov/v...es3/1026621.txt

.

Are they saying if you have 100% and not TDIU then the VA can combine additional SC to meet the 60 for the 100% plus 60 SC "S" award?

Yes, and this is where part of our SMC "question" comes in concerning combining the additional disabilities as oppose to adding the percentages. Anytime a 100% rating shows up, the VA is suppose to look for eligibility to SMC.

Since the premise of TDIU says Total disability due to individual unemployabilty-should TDIU vets file for and request 100% instead of the TDIU?

TDIU is awarded when the disability(ies) do not meet the criteria for 100% on the regular schedule, but severely impedes the Veteran's ability to obtain and maintain employment. . Example: A Veteran is rated 70% for Chronic Adjustment Disorder, because he/she does not meet the requirements, gross impairment in thought processes or communication; persistent delusions or hallucinations, etc for the 100% rating, but due to obsessive rituals, can not be employed, or can not maintain employment.

I have always had the feeling that SMC can be manipulated by the VA to their favor-

and maybe the key to that is in fact that many TDIU vets should be 100% vets but as long as they are deemed TDIU they would need qualify for additional independent 60% SC for "S" unless they can meet the housebound requirements for "S" instead.

In all honesty, I personally feel any Veteran who is TDIU, satisfying the requirement for permanent and total, should be awarded 100%, total. I often wonder how a Veteran rated TDIU, P&T, after 20 years is rated? Do they just always remain TDIU, even after the 20 years? The VA, as of now, just keeps combining all additional disabilities, until SMC is awarded, if ever.

I'm sure if I'm mistaken, someone will be kind enough to set the record straight........

Old soldiers never die.... we just fight new wars!

Proud to have served, U.S. Army WAC

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