tdiu Would This Qualify For Some Type Of Smc

[Charleese]

Hi all,

Would this qualify for some type of SMC and if so what type (SMC S, etc.)

Vets C&P exam states that vet needs help getting dressed, shaving (can't stand in front of mirror), can't put on his knee brace, has a shower chair so he can shower himself. It also states he notes it has gotten him to a point where he can do very little. Needs assistance dressing (can't lift arms), needs assistance shaving; can no longer cook various menu items for he and his wife because of neck pain and because he can't stand in order to cook. Can no longer bowl. Can no longer do yardwork.

Vet is 100% TDIU P&T. His combined rating is 80%. L Knee condition 60%,C-spine condition 20%, R Knee condition 10%, and L Thigh Atrophy 10%.

Thanks in advance for your replies.

[broncovet]

IMHO, YES, he should be eligible for additional compensation. There are 3 possibilities:

1. Bradley vs Peake may apply, entitling you to SMC S. Its rather complex, but it sounds like you have "100 plus 60", because Bradley specifically states that TDIU can "sub" for the 100 part.

2. You may also be eligible for Housebound, (in fact), which is also paid at the SMC S rate, as above.

3. Lastly, he may be able to get "Aid and Attendance", which is a greater benefit than those above.

I recommend applying for the "A and A" benefit AND SMC S. You wont get both, tho. The VA will give you the highest they think you are eligible for..either SMC S or A and A. I think you have a "good shot", based on what you posted, as a minimum of SMC S, or maybe even A and A.

[Teac]

To qualify for statutory SMC S, Housebound a veteran must be rated 100% and have an additional seperate rating of 60%, or show the actual need for housebound.

To qualify for SMC S , House bound, Under Bradley v Peake, a veteran must have been awarded TDIu based on one disability rated at least 60% and have an additonal seperate disability of 60%. This veteran does not meet the requirement of Bradley v peake.

Aid and attendance (A&A) is only payable to veterans that are rated 100% (not TDIU) and the vetean must show an actual need.

The veteran may qualify for SMC S based on actual need, but he will have to request it, and may have to have a c/p to specifically address the need for SMC.

[broncovet]

As Teac pointed out, there are two ways to qualify for housebound:

1. First, if you meet the "100 plus 60" as in Bradley vs Peake, then the VA must infer your eligibility for housebound and you should not have to do anything to apply for it. (In practice, I would go ahead and apply because, if you have not gotten it, then it sounds like something went wrong and the VA did not infer it.)

2. If you are housebound in fact, that is, you meet the legal defination of housebound WITHOUT qualifying for the "100 plus 60" in Bradley vs Peak, then you have to apply for housebound..it wont be inferred.

There is at least one instance when a Veteran can get Aid and Attendance and NOT be 100%. That would be Pension Aid and Attendance. With Pension A & A you qualify on a bases of need (this generally means low income, and not too many assets), but you still have to meet the guidelines for A and A.

[Charleese]

I am totally confused. With the ratings listed below are you saying his total ratings is 100 plus 60. If not what is his total ratings: He is:

60% left knee injury; 10% scaring secondary to left knee injury; 10% left thigh atrophy seconary to left knee injury; 10% right knee condition secondary to left knee injury; 20% cervical spine condition secondary to left knee injury. He has been granted TDIU P&T.

His C&P states: "Entitlement to IU is granted because the claimant is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.

The BVA remanded your case to obtain medical opinions on the issue of whether or not your service connected conditions render you unable to secure or follow substantial employment. At your Spine examination, the examiner stated that due to your cervical injury you would not be employable in your former occupation as a chef because your range of motion limitations would restrict your abilities to perform the job functions. He opined that due to constant pain and limitation of motion, you would be unable to secure or follow a gainful occupation due to your service connected disabilities. The Joints examiner stated that your knee and tibia issues render you unemployable because you are unable to sit or stand for prolonged period of time. Entitlement to IU is granted effective May 29, 2009, your date of claim."

Are you saying the 100% TDIU is considered separate from his left knee injury and all its secondariees and that is what qualifies him the 100 plus 60. Please tell me whether this is true or not.

Thanks in advance for all the replies.

[broncovet]

Charlesee, there is MUCH discussion on Bradley vs Peake, and whether or not he qualifies for SMC S with the "100 plus 60" rule. Dont feel like the lone ranger if you are confused, because there are many different opinions on Bradley vs Peake.

Prior to Bradley, SMC S was only considered if the Veteran was 100% Schedular and had an additional 60 %. Bradley vs Peake changed that, and now, at least in some circumstances, the TDIU rating plus another 60% can qualify the Vet for SMC S.

As far as whether or not YOU qualify under Bradly vs Peake, the only way to know for sure is to apply and probably appeal.

I think we will see court cases clarifying Bradley, but until then, you just have to use trial and error. I say you should go for it.