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

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  • HadIt.com Elder

I've kinda been expecting it! I even explained about the issue of using the "combined ratings table" illegally and enclosed reference to a BVA decision. So I'll be filing my appeal to the CAVC next week. I'm rated 100% + 20% + 10% + 10% + 10% + 10% which should be added together, for the needed 60%. Guess we need the CAVC to clarify the rule.

pr

Edited by Philip Rogers
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  • HadIt.com Elder

Yep, the only way to find out is to take it to court. If you win or lose on the "combined ratings " issue for SMC that will clarify it for other vets.

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  • HadIt.com Elder

I've kinda been expecting it! I even explained about the issue of using the "combined ratings table" illegally and enclosed reference to a BVA decision. So I'll be filing my appeal to the CAVC next week. I'm rated 100% + 20% + 10% + 10% + 10% + 10% which should be added together, for the needed 60%. Guess we need the CAVC to clarify the rule.

pr

PR, Maybe the Court has already decided the "issue" in the past; can you post the Reasons and Bases or some part of the Decision that will help me search for suppoorting case law? ~Wings

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  • HadIt.com Elder

Wings, thank you!!! I'll post the reasons and bases, later tomorrow, as I don't type well and just the SMC reasons and bases section is 10 3/4 pages long. I believe it needs to go to the court as I've never seen any precendence cases and I think they settle and award, prior to the court addressing the issue. (jmo) They do address the issue of the ability to "leave the home to earn a living" as being part of the housebound issue. They also state my credibility is questionable, but I note it's only when it's favorable to me and not when it's favorable to them. I'm sure an attorney can pick this apart.

pr

PR, Maybe the Court has already decided the "issue" in the past; can you post the Reasons and Bases or some part of the Decision that will help me search for suppoorting case law? ~Wings

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pr - sorry to read about this set back.

This "ain't" the last bite at this issue for you, but I think your

deadline is 120 days but am not positive right now.

I too am interested in the Reasons and Bases.

Carrie - over at Bergmann & Moore, has been VERY helpful

with all of my questions in the past.

There's a contact on the homepage if your interested.

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Yes- and Jerrel told me Carrie might be doing a SVR show in the future on Bradley V Peake.

Yikes -I just remembered-

I think it is set for next week March 14th and he asked me to be on the show---I almost forgot!~

Flip- take them by the Goonyats on this one!!!!!!!!!!!!!!!!!!!!!!!!!!

Am I nuts or isnt this recent BVA decision from Steven D Reiss at BVA the same scenario as yours is?

Maybe you should ask the BVA by form of a Motion , to go CUE themselves!!!!!

Or ask for this specific law judge to re do your decision.

Or maybe the BVA had some valid rationale for the denial but I cant fathom what that involved.

Is the above the same BVA decision I posted the one you used to support your claim?

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files5/1146258.txt

In Part:

“As detailed above, the Board awarded a TDIU, effective August 12, 2009, solely because the evidence of record, to include an August 2009 VA examiner's opinion, sufficiently indicated the Veteran's psychiatric symptoms are of such a severity that they alone produce unemployability. Accordingly, although PTSD has not been rated 100 percent disabling, for SMC purposes this disability satisfied the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Thus, at this time and given the absence of any evidence or assertion that he is permanently housebound, the Board determine if, since August 12, 2009, the Veteran's other service connected disabilities, separately or combined together, are ratable at 60 percent.

Since September 1, 2009, the Veteran's respectively service connected disabilities, other than PTSD, result in a combined 60 percent disability evaluation. For this period, combining the 30 percent disability evaluation for bilateral hearing loss; the 20 percent disability evaluation for a left ankle neurological disability; the 10 percent disability evaluation for tinnitus; the 10 percent disability evaluation for a left ankle orthopedic disability; and the 10 percent disability evaluation for a residual left ankle shell fracture wound scar, yields a combined 60 percent disability evaluation. Id. “

signed by

STEVEN D. REISS

Veterans Law Judge, Board of Veterans' Appeals

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