Bva Denied My Smc For 100% + 60% "s" Award . . .

[USNDW]

After much time reading through this entire post I found some information that may be helpful to me, such as the Substantial definition and others.

I still have a question??

If a Veteran has a single rating that is 60% and CAN be used to award IU, and has more disabilities that combine to 60%, should that Veteran be receiving SMC S???

My inital rating was TDIU 90%. The reason for IU was never given, never described or explained. One of my ratings was for a TKR which had failed, actually 2 on the same knee failed within 1 year. That condition was given a 30% rating. I filed a NOD and was eventually awarded a 60% rating for that single disability 8/2009.

I haven't went as far as pr in filing a claim or appeal, mainly because I am still waiting on a NOD for RA.

But I did speak with the VARO and they said that since my rating now is 100% schedular and P&T that my question is moot.

Doesn't Bradley decision clarify the fact that if a single rating CAN be used to award IU and the Veteran has other disabilities that combine to 60% they should be awarded SMC S???

I don't want to jump all over the post, but it is along the same lines, and I also need to ask about the substantial. Does the Veteran have to have an IU rating to consider Housebound status?????

I no longer have IU, but I am on SSDI, and I was awarded IU before I met the 100% schedular. Would I still qualify??

Thanks

[broncovet]

USN

There is much discussion on Bradley vs Peak on hadit. While some of this is mere speculation on what the VA could, should, or might do,

Buie seems to clarify the courts position on this. Without a thorough review of your documents, most predictions on whether or not you are entitled to SMC would be about as good as a coin toss.

However, if you think you deserve SMC under Bradley, then you should consider a lawyers opinion..they will review your case for free, and then you can decide whether to hire them or fly solo or with a VSO.

There is a discussion on Buie, here:

http://asknod.wordpress.com/2011/09/27/cavc-buie-5-v-shinseki-0-2011/

[Philip Rogers]

I agree w/bronco and add that any claim not pursued, by you, is an automatic win for the VA! Two yrs of an SMC "s" award is around $8k, plus or minus. I'd chase the award, if it were my claim. In fact, my claim, if won now, totals $50k+ and is well worth my pursuing and I'd be nuts to give it up! Just sayin' . . .

pr

[USNDW]

Very much appraeciate the answers and the link, I copied the info as soon as I read it.

Anyone have Mr. Carpenter's phone number? HA, not really joking though.

PR, I certainly hope that one day soon your claim gets fixed. This is the most insane system I have ever had the displeasure of trying to work with.

I don't know any other agency where you cannot communicate with the person who is deciding your claim. Even the IRS mails a letter with the information for the point of contact, and if you call the 800# and speak with someone they try to transfer you to the right place, or make a note in the system. I have left messages before thinking no way was I getting a call back and sure enough a supervisor ended up calling me back. I was able to get 2 audits corrected because I was able to communicate, even if it was in writing, with the people making the decision.

With the VA, you have no idea who is working your claim or reviewing your appeal. Saying a DRO or VSR is working your claim, Wow, thanks, that sure clears it up for me. There is no way that a DRO has read the information that I have sent them and put their name on it. Pointed out 3 VCAA violations with the same claim. Stupid. Unless of course you are so lucky to have a hearing for a NOD or BVA appeal. What, only 4-8 years to be able to speak to someone? Veterans should feel the LOVE from the VA.

Back to the topic. Hvae you all read the end of that statement in Buie? It says regardless of the date of awards for conditions the VARO should

"and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a total disability rating based on individual unemployability"

That tells me that if a Veteran receives an award for a condition that COULD be used to award a rating of IU, then the VARO should assess their claim at that time to ensure they maximize the Veterans benefits.

Isn't that what it says?

And again, regardless of the date of the award, if a disability or disabilities are awarded that would effectively make the Veteran qualified for SMC then the VARO is responsible to do just that. I also like the fact that the Court said that the affective will be the date the disability(ies) qualified the Veteran for SMC. I don't think I am going to wait it out and see if they fix it, but if I file for SMC after my appeal is done, isn't the Court saying the VA will use the date as above?

[Philip Rogers]

Update - it appears that the VA and my counsel (Bergmann & Moore) have a telephonic briefing conference on 10/22/2012. Both are ordered, not later than 14 days prior, to supply the Secretary and the Central Legal Staff (CLS) a summary of the issues to be raised, before the Court, including any citations, w/relevent authorities and pertinent documents. It further states: "ORDERED that the attorney or representative for both parties shall attend the conference with the authority to enter into a joint resolution of the appeal or settlement to the extent authorized by the client or be within immediate contact with such a person during the staff conference. The parties shall jointly notify the Court if the parties reach agreement on the disposition of any or all issues prior to the conference."

Maybe it'll be resolved . . . but then again, probably not. jmo

pr

[broncovet]

What you described, PR, sounds like an announcement for a JMR (Joint Motion for Remand) to me. Further, that sounds like good news. The VA has admitted (finally) they made a mistake, else no JMR.

I will stay tuned for your report of the results.

Sometimes, however, I think JMR's are just a "theme park ticket" to the hamster wheel, tho.

Hopefully, B and M has experience on the hamster wheel and knows that riding on it makes both the attorney and the client sick, so they wont consent to the JMR unless its favorable.

However, it has been pointed out that a JMR often yields attorney fees, but zilch for the Vet.

Before you agree to get on the hamster wheel, I would make sure this JMR is for you, and not JUST for an attorney payday.