hypertension Smc Overload

[Teac]

You have a huge problem. That is you are already rated 100% total. The va is not obligated to even consider TDIU if you are already rated 100%.

But on the other hand.. if you were rated 60% with TDIU and also had the smc .. and then the va revoked the TDIU and awarded 100% and you lost the SMC at the same time.. According to Bradley v Peake the VA would be required to

award TDIU and the SMC even though you could be rated 100%. This is because the va is required to award the maximum benefits allowed.

But as I said, once you are rated 100% the va is not obligated and by law will not consider TDIU... they will say it is a moot point...

You also would have to show the knee is the reason that you don't work, that may be hard to prove if you have been out of work for a while, and never raised the issue, or if you had a career that didn't require much walking or standing....

Don't want to discourge you but remember the va looks at all the evidence not just the medical records.....

At least this is how I understand the delima...

Edited May 25, 2011 by Teac

[Teac]

Your residuals status post knee replacement are a musculoskeletal disability. A nerve condition, while secondary to your knee replacement is okay, and does not run afoul of the amputation rule. This is not pyramiding, since musculoskeletal and nervous system are separate and should be evaluated as such.

The problem with this reasoning is that the va did not always rate nerve injuries seperate from musculoskeletal ratings.

For example.. I have DDD lumbar region, rated at 60% , it caused siatiac nerve damage , muscle problems , and drop foot... I was never rated for the nerve damage as at that time (1999) it was considered part and parcle of the back injury. I was awarded a K award for the drop toot.... Truthfully, under the new rating schedule I don't think I wouild ever get a 60% rating for my back, and I would be lucky to get a 30% rating for the siatiac nerve.. but the VA does not re-rate based on the new schedule just to lower a rating.. And besides one 60% rating is better than two 30% ratings because of the combined ratings chart...

[USNDW]

Thanks for the replies, I appreciate the inout.

I do not have a Vet Rep. and have never had one. I received my award within 30 days of retirement, TDIU with DEA benefits and then later the NOD and additional shoulder and hypertension ratings. I talked with 2 before filing my own claim but the response I got was not encouraging so I went it alone.

I did verify that they finally received the packages I sent, the last 2 anyway, and after I asked why I have to send them something 2-3-4 times before they admit they received it I have not had an issue of them not receiving my mail. Crazy. Now they have the medical reports and tests to confirm that I was diagnosed with an inflammatory (unidentified) arthritis condition affecting every joint in my body which occured within the 1 year presumptive period. Arthritis is presumptive and I was seeking medical treatment while active duty anyway and it is in my records, and they have seen them and have rated multiple joints with arthritis.

If the VA can say that since I am 100% the TDIU and SMC S is moot, why didn't they write that in the fast letter?? There is nothing in the fast letter about a Veteran who is 100% schedular based on multiple disabilities being unable to qualify for SMC S under the Bradley case. I read that thing about 10 times to make sure and it does not clarify that, and in fact states the VARO must maximize the Veterans benefits and in order to maximize them they would have to consider the highest single rating in the award and determine if that single disability would qualify the Veteran for TDIU, which my right knee at 60% would because of the severity of the condition. As I mentioned earlier that is the reason I was awarded SSDI, along with the side effects of the pain medication I took because of the right knee condition (service connected).

I did originally have a TDIU rating, and when I was awarded the 60% for the right knee I inquired about SMC and they denied I qaulified. It wasn't until after my hypertension and left shoulder were rated did they say I was 100% schedular. That is why I wrote overload. Every answer I get on the question is not specifically in the fast lett 09-33, or the rating process did not occur as it should have making it in even more confusing.

I snet a letter to the RO asking that the question be considered when they review my NOD.

Again, thanks everyone for your input, when I get a final answer, whether right or wrong I will post it.

[jbasser]

J - I continue to disagree!!! The additional ratings do not need to be combined, altho that is how the VA is apparently administering it at present. The additional ratings need only "add up" to the additional 60%. Anyone who's additional ratings add up to 60% should apply for the SMC "s" award, and if denied, appeal, appeal, appeal . . . . It's like money in the bank. When you win you'll get a nice retro check. Or you can listen to the VA and others(J) and not apply and get nothing, zero, zip, etc. It's your choice! jmo sorry J!

pr

The best chance to get this discombobulated issue out in the open is for a Veteran to file an appeal, get deined, appeal to the BVA, Get denied and finally get it into the Court where it could be a precedent setting issue. It may even take a hgigher court to do it. That is what is needed, for the current status quo we are at the mercy of the VA on this issue.

j

[Philip Rogers]

j- that's what I'm hoping to do, w/my claim. It's been back and forth for 20 yrs and it was just remanded, back to the BVA, after another RO denial. In the mean time I recommend all who may should file, now, and not wait. Thanks!!

pr

The best chance to get this discombobulated issue out in the open is for a Veteran to file an appeal, get deined, appeal to the BVA, Get denied and finally get it into the Court where it could be a precedent setting issue. It may even take a hgigher court to do it. That is what is needed, for the current status quo we are at the mercy of the VA on this issue.

j