tdiu Would This Qualify For Some Type Of Smc

[USNDW]

Very similar to my circumstances

Initial rating was for 30% right knee and then 3 other 30% ratings, 1 20%, and about 6 10% with TDIU. The C file contains the letter describing the award for TDIU, but all it says is "8+ ratings TDIU Granted"

Then I filed a NOD, and was given 60% for the right knee, an additional 10% hypertension and 10% left shoulder. They wrote me the award letter and said my rating was still 90% paid at the 100% for TDIU. I asked them to check their calculations and they came back and said 100% P&T. I then began asking about SMC S because of the 60% rating, and the severity of it. The RO finally responded and said TDIU was based on all of my orthopedic conditions. Since they never even considered the new SMC provision after Bradley & Peake I just asked the DRO to consider this rating when they review my appeal for 2 other conditions.

The writing of the new provision clearly states that if a single disability can or could predicate a TDIU rating, and the Veteran has another 60% of combined ratings, they qualify for SMC S.

But when did the regulations ever stop the VA?

[Teac]

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.

This statement above needs to be qualified:

Veterans may be entitled to war time pensions, only because they do not have enought service connected disability to be awarded IU or 100%, and have no income or low income. In fact there is means testing to qualify for a war time Pension, most times a veteran must decide between SS or va war time penision as they can only receive the higher of the two. In addition, some veterans drawing a war time pension may qualify for A&A.

[Teac]

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.

The bottom line, if the veteran is rated IU based on one service connected condition rated 60% or more and has an additional seperate disability rating of 60% then he will qualify for SMC S Housebound. Based on what ratings you listed above, I don't seen how this veteran qualifies for Housebound because it appears all of his disabilities are for right knee problems..... there fore he does not have 60% disability seperate and distint from the disability rating that qualified him for TDIU. In fact I will go a little further and state it actually appears that his TDIU rating was predicated soley on all of his ratings and not just the knee disability . If this is so, he is disqualified from receiving SMC S.

Further even if his 60% left knee disability is the sole reason for TDIU, his other disabuilites do not add nor combine at 60% so either way he does not qualify for SMC S.

This is just my opinion based on the information you provided.

[john999]

If you meet the exact criteria for "S" you should be able to get it pretty quick. It is a CUE if they did not award it to you when you first became eligible for it. You are not even supposed to have to claim it. I am sure there are thousands of vets out there who have been denied "S" because unless there is some lawsuit the VA is not going to go back and look to see who should have gotten it. The thing is you probably have to claim it, so the system fails again.

[broncovet]

One thing that appears to be overlooked here:

There are TWO ways to qualify for SMC S:

1. The very famous Bradley vs Peake 100/60 rules.

2. Housebound "in fact".

Remember, it is Either of these, not both that is required. While Teac suggested he did not qualify under Bradley Vs Peake, no one asked if you may qualify as "housebound in fact".

[Teac]

One thing that appears to be overlooked here:

There are TWO ways to qualify for SMC S:

1. The very famous Bradley vs Peake 100/60 rules.

2. Housebound "in fact".

Remember, it is Either of these, not both that is required. While Teac suggested he did not qualify under Bradley Vs Peake, no one asked if you may qualify as "housebound in fact".

Go back and read the first line in my first reply.

. and his question concerned TDIU and housebound so why would any one ask him about statutory housebound?

Edited July 11, 2011 by Teac