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

[Teac]

Philip,

I an not clear as to what smc you were requesting A&A SMC L, or Housebound SMC S, so I will address both SMC's.

Please keep in mind this is my opinion based on my prior expierence as a vso, and my own claims where I have been awarded housebound and then later A&A. My opinions are not always correct, and va decisions are not based on my opinions.

I read the reason for denial and the reasoning used to deny seems very clear.

They specifically state that statements made by you and your ex-wife are not creditable , when compaired to the other evidence in the case. but....

From what I read, you don't meet any of the single qualifications that would entitle you to A&A or housebound anyway.

You are able to bathe, cook, clean, take medications, leave the home alone, make long extended trips out of state, attend medical appointments without help, you drive or someone drives you and you do make trips alone or with a friend to the store or resturants. There wasn't anything in the denial that indicated you needed help to do any of the things that your can do. While it indicated your mother cooks for you at times or reminds you to bathe, it does not state you need help to cook or bathe. As such based on what I know about A&A your do not meet the qualifications of an award.

As to the additional 60%.

The 60% only comes into consideration for statutatory awards of Housebound SMC S, not A&A. The veteran must have a single permanent disability evaluated as 100-percent disabling AND, another disability, or disabilities, evaluated as 60 percent or more disabling. You additional ratings combine at 50% . At no time have I ever known the va to add disabilities ratings together they are always combined using the combined ratings chart.

I know that reasonable people can disagree on how the va should add/combine ratings above and beyond the 100% rating, but as you said unless the issue is decided in court the arguement for adding and not combining will be just that an arguement and the va will always win that battle.

Now as to an award of Housebound SMC S, either the veteran must have actually be housebound or be rated 100% plus have an additional seperate or combined rating of 60% or more. Based on the information in the denial you are clearly not housebound.

Now for A&A the veteran must be rated 100% and have shown an actual need for aid and attendance as outlined above. If a veteran shows an actual need, and has an additonal seperate rating of 50% or more his award for A&A would be at the L 1/2 SMC Level.

I don't like to agree with the va denials, but I really don't see a valid claim for either Housebound or A&A. Please, I am not saying the VA is correct, I am just saying I think they are correct, the va has been wrong before in other matters and can be wrong again.

I really hope that you achieve that which you set out to do, but I honestly don't see a valid claim based on what you have presented here. I really wish I could say otherwise, and I do wish you the best outcome possible.

(For what it is worth, if I added my disabilites together I would be at 250 so I wish the va did add and not combine because my A&A would be at a higher level than it is now.....)

[jbasser]

Teac We have been over this before.

Under Bradley V Peake the decision stated that a Vet who is considered IU is also eligible to be awarded SMC S.

You do not have to have a 100 percent schedular rating,

This is not Hadit's first go around with this issue.

The main question here is why the VA uses the combined rating schedule over and above 100 percent.

Once a Veteran reaches IU or 100 percent their residual should drop to zero. This is just another scheme the VA uses to Rip Off the veteran population.

On the other hand this issue will be decided at the court level once and for all.

If you really want a breakdown of Bradley V Peake, I suggest you listen to the Next Bergmann-Moore SVR show. We will break this case down and They will explain it in great detail.

Basser

[Philip Rogers]

Teac - thank you for your input and don't take it personally but I disagree, obviously, otherwise I wouldn't be pursuing it. I meet A&A just on the protection of oneself aspect. Additionally I need someone to remind me to take my meds. As for the HB issue, I have been unable to leave my house "to work," meaning 5 days a week, eight hrs a day, 40 hrs a week, for over 23 yrs. Just because someone eats out once in a while, attends medical appointments and picks up groceries, doesn't mean they aren't HB. The key word is "substantially" housebound which doesn't mean all the time but means frequently or for the most part.

I did note that we were not "credible witnesses," however, they accepted that I "allegedly stated that I was flying to NC to buy homes." First off, I don't fly, period. I had purchased a home, in NC, and was going there for the winter. Someone else drove me here. There are too many inconsistencies, in their reasoning.

Anyway, at this point it's about the 100+60. Thanks again for your input.

pr

Philip,

I an not clear as to what smc you were requesting A&A SMC L, or Housebound SMC S, so I will address both SMC's.

Please keep in mind this is my opinion based on my prior expierence as a vso, and my own claims where I have been awarded housebound and then later A&A. My opinions are not always correct, and va decisions are not based on my opinions.

I read the reason for denial and the reasoning used to deny seems very clear.

They specifically state that statements made by you and your ex-wife are not creditable , when compaired to the other evidence in the case. but....

From what I read, you don't meet any of the single qualifications that would entitle you to A&A or housebound anyway.

You are able to bathe, cook, clean, take medications, leave the home alone, make long extended trips out of state, attend medical appointments without help, you drive or someone drives you and you do make trips alone or with a friend to the store or resturants. There wasn't anything in the denial that indicated you needed help to do any of the things that your can do. While it indicated your mother cooks for you at times or reminds you to bathe, it does not state you need help to cook or bathe. As such based on what I know about A&A your do not meet the qualifications of an award.

As to the additional 60%.

The 60% only comes into consideration for statutatory awards of Housebound SMC S, not A&A. The veteran must have a single permanent disability evaluated as 100-percent disabling AND, another disability, or disabilities, evaluated as 60 percent or more disabling. You additional ratings combine at 50% . At no time have I ever known the va to add disabilities ratings together they are always combined using the combined ratings chart.

I know that reasonable people can disagree on how the va should add/combine ratings above and beyond the 100% rating, but as you said unless the issue is decided in court the arguement for adding and not combining will be just that an arguement and the va will always win that battle.

Now as to an award of Housebound SMC S, either the veteran must have actually be housebound or be rated 100% plus have an additional seperate or combined rating of 60% or more. Based on the information in the denial you are clearly not housebound.

Now for A&A the veteran must be rated 100% and have shown an actual need for aid and attendance as outlined above. If a veteran shows an actual need, and has an additonal seperate rating of 50% or more his award for A&A would be at the L 1/2 SMC Level.

I don't like to agree with the va denials, but I really don't see a valid claim for either Housebound or A&A. Please, I am not saying the VA is correct, I am just saying I think they are correct, the va has been wrong before in other matters and can be wrong again.

I really hope that you achieve that which you set out to do, but I honestly don't see a valid claim based on what you have presented here. I really wish I could say otherwise, and I do wish you the best outcome possible.

(For what it is worth, if I added my disabilites together I would be at 250 so I wish the va did add and not combine because my A&A would be at a higher level than it is now.....)

[Teac]

Teac We have been over this before.

Under Bradley V Peake the decision stated that a Vet who is considered IU is also eligible to be awarded SMC S.

You do not have to have a 100 percent schedular rating,

This is not Hadit's first go around with this issue.

The main question here is why the VA uses the combined rating schedule over and above 100 percent.

Once a Veteran reaches IU or 100 percent their residual should drop to zero. This is just another scheme the VA uses to Rip Off the veteran population.

On the other hand this issue will be decided at the court level once and for all.

If you really want a breakdown of Bradley V Peake, I suggest you listen to the Next Bergmann-Moore SVR show. We will break this case down and They will explain it in great detail.

Basser

Basser,

With all due respect,

I don't see anything in this thread in reference to bradley v Peake or anything that even required bradley v peak to be raised. Philip was not making any claims based on bradley v peake (was he) his claim is based on a 100% schedular rating. If he had raised bradley v peake I would have cited the requirements which are; TDIU awarded based on one 60% rating, and an additional seperate or combined rating of 60%.

Trust me, I am fully informed about bradley v peake and have posted many times concerning Bradley v peake, again this is one instance were I didn't think it needed to be addressed. I actually have an appeal pending concerning bradley v peake where the va failed to award me housebound when I was TDIU for my 60% back issue, and I had a seperate 60% award for asthma, ( this was prior to my now 100% + ratings) Houston has had my appeal for over a year.

I did however, state my opinion concerning ratings above and beyond 100% schedular ratings. It is my opinion the va never intended any rating to be added using normal math, regardless of how high a veterans rating is. There is nothing in any va rule, or regulation nor is there anything in law that states the va will drop residuals to zero when the veteran has received a 100% rating. As I said, reasonable people may disagree on this and perhaps the courts will have to decide the issue flat out. I wish the va would drop residuals to 0 after a veteran reaches the 100% rating, I would benefit greatly from such a ruling, but frankly I think it is just another reason ( in a long list of reasons) that some veterans use to appeal a denied claim and nothing more. Of course the va makes a lot of mistakes so who knows.....

[carlie]

It does seem pretty clear that this SMS/S issue will have to be decided

by the court - in regards to the additional 60 percent being figured by using the

VA's combined ratings versus independent, separately added NOT COMBINED

additional disabilities of 60 percent.

The reg does have the words,

Has additional service-connected disability or disabilities independently ratable at 60 percent

We can hash it out here all we want but ultimately this will be up to the court.

My question is why has the court ruled on this yet or has this issue hit the court level

by another claimant yet ?

[jbasser]

It does need to get to the court to be decided. Go get them PR. You have been a real asset to us here and we all appreciate your input on our issues. Your experience as a VSO and a friend are an asset to Hadit.

J