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

[carlie]

In 2010 they added the additional disabilities, which total 60%, using simple addition. We should not discuss simple addition vs the combined ratings table in my case, as the court needs to decide that issue and I am headed there.

Much of their reasons and bases are false. I've had a pin in my knee since 1971 (after a suicide attempt - m/c vs auto) and haven't had a "normal gait" since 1971 and about 12 yrs ago was told I need a knee replacement. My gait these days is akin to Walter Brennan, in the TV show he had yrs ago. As for walking I doubt I could do 200 yds, w/o much pain and resting every 30-40 yds. I don't fly!!! I have a severe fear of crashing, so I don't. Probably relates to my having to jump outta my first plane rides (yup, Airborne, all the way) Duh!!!!

pr,

Since the theory for SMC/S in this topic, is the additional 60 percent - (added individually / separately,versus combined),

my question for now is,

when the VBA "added the additional disabilities" in 2010 - did they adjudicate any effective dates

for these "additional disabilities" ?

[Philip Rogers]

Carla, yes, they did but they didn't "add" up to 60% until July, 2010 and they never sent me an award notice on 3 of them, when they awarded them.

pr

pr,

Since the theory for SMC/S in this topic, is the additional 60 percent - (added individually / separately,versus combined),

my question for now is,

when the VBA "added the additional disabilities" in 2010 - did they adjudicate any effective dates

for these "additional disabilities" ?

[Teac]

Date: November 25, 2005 VAOPGCPREC 5-2005

From: General Counsel (022)

Subj: Eligibility for a "Temporary" Total Disability Rating Based on Individual Unemployability—38 C.F.R. § 4.16(b)

To: Chairman, Board of Veterans’ Appeals (01)

QUESTION PRESENTED:

May the Department of Veterans Affairs award a total disability rating based on "temporary" individual unemployability

under 38 C.F.R. § 4.16(b)?

HELD:

Section 4.16 of title 38, Code of Federal Regulations, authorizes the Department of Veterans Affairs to assign a total rating based on individual unemployability (TDIU rating) based upon a veteran’s temporary (i.e., non-permanent) inability to follow a substantially gainful occupation. However, not every period of inability to work will establish an inability to follow a substantially gainful occupation warranting a TDIU rating, because it may be possible to secure and retain employment and to earn significant income despite occasional periods of incapacity. VA must make determinations regarding ability or inability to follow a substantially gainful occupation on a case-by-case basis, taking into account such factors as the frequency and duration of periods of incapacity or time lost from work due to disability, the veteran’s employment history and current employment status, and the veteran’s annual income from employment, if any.

Thanks for that piece of information. I left my volunteer DAV SO position in August 2005 and this is First time I have heard of such a ruling. I notice it is from the General counsel, ie; a va lawyer... wasn't it also a general counsel that wrote the rule stating those with TDIU were not eligible for SMC S? So what we have is one lawyers opinion....correct? I think the va would be hard pressed to defend such a decision in a court since temporary TDIU ratings were not what the congress had in mind. However, I doubt any veteran would actually challenge it just because most would be happy just to get the compensation that comes with the award.

I still think the VA would be wrong to issue a TDIU rating without making it P/T. The very nature of TDIU is for those who cannot work, if someone may be able to return to work they should receive a temporary 100% ratings such as those used after surgery and during recovery periods. I don't understand why a va counsel would make such a determination. But as I have often said, my single opinion (to most people) holds little weight , if any at all.

[Wings]

Thanks for that piece of information. I left my volunteer DAV SO position in August 2005 and this is First time I have heard of such a ruling. I notice it is from the General counsel, ie; a va lawyer... wasn't it also a general counsel that wrote the rule stating those with TDIU were not eligible for SMC S? So what we have is one lawyers opinion....correct? I think the va would be hard pressed to defend such a decision in a court since temporary TDIU ratings were not what the congress had in mind. However, I doubt any veteran would actually challenge it just because most would be happy just to get the compensation that comes with the award.

I still think the VA would be wrong to issue a TDIU rating without making it P/T. The very nature of TDIU is for those who cannot work, if someone may be able to return to work they should receive a temporary 100% ratings such as those used after surgery and during recovery periods. I don't understand why a va counsel would make such a determination. But as I have often said, my single opinion (to most people) holds little weight , if any at all.

The GC Op was written in 2005. The Issue of TDIU P&T ratings and higher SMC awards was decided in Bradley v.Peake, 22 Vet.App. 280 (2008).

Edited March 13, 2012 by Wings

[evandc]

I am 100% TDIU (70%, 30%) pluse 60% IHD, plus 20% risiduals Prostate Cancer and get the SMC "S" Award plus SMC "K"....so after fifty something posts is the question do they also award the SMC "S" for combination that adds up to 60%? Not being a smart ass, just trying to get back to understanding what's going on..and the answer should be they are suppose to take either one 60% or a combination that adds up to 60%..Is that correct?

Edited March 13, 2012 by evandc

[Philip Rogers]

evandc - as it stands now, the VA "usually" uses the combined ratings table when adding up the additional 60%.

pr

I am 100% TDIU (70%, 30%) pluse 60% IHD, plus 20% risiduals Prostate Cancer and get the SMC "S" Award plus SMC "K"....so after fifty something posts is the question do they also award the SMC "S" for combination that adds up to 60%? Not being a smart ass, just trying to get back to understanding what's going on..and the answer should be they are suppose to take either one 60% or a combination that adds up to 60%..Is that correct?