S Rating Criteria

[courier71]

Thanks for the replies.

No TDIU. I received a schedular 100% rating several years before I stopped working.

courier71

[Philip Rogers]

Teac - I disagree because it's you! Only kidding!!! I feel that at a 90% single rating (which I question) the VA should consider TDIU, just to cover themselves. The court has ruled that the VA is supposed to look at the highest rating possible and if not , at least explain why not. jmo

pr

What is your disagreement about? Clearly if he is only 90% he is not eligible for the SMC...As to your comments, that is good advice but we don't know what the va did or did not consider when he was awarded his 90%. My understanding is that The va is not obligated to consider TDIU unless it was asked for or implied. At the most the va might have been obligated to send him a form for TDIU, beyond that it is the veterans responsibility alone.

It is possible bilateral ratings could help get to a single 100% rating, that I am not sure about. The fact that something is secondary to a 90% rating, does not matter.

[Chuck75]

This gets into a contentious area. The VA looks at things their way, and that is not usually to the veteran's benefit.

The statutory language can be interpreted more than one way. Even the VA has changed it's stance over time.

One line of thinking is that the combination scheme used by the VA can only be used once, and the problem is that

all disabilities present will only result in something less than 100%. (by VA design!)

The VA may (and should) then award the closest percentage, which may be 100%. The key is what disabilities were "used up"

in the 100% award.

A severely disabled veteran with a 100% statutory disability and other disabilities falls into the contentious area concerning SMC ratings,

because the language first states clearly that one of the additional disabilities should be 60% or greater. There is follow on language and language

in other sections that can be read as allowing the additional disabilities beyond the 100% to be added to reach the 60%.

The VA has, in past cases, used both additive and combinational methods, and also denied based upon the lack of an additional single 60% disability.

A question is always did the VA use the combinational scheme up with the highest disability rating, which might be 100%. Or, is the VA free to use the combinational scheme on the lesser disabilities below the 100% single rating?

In other words, cases like the one mentioned in this thread are a very good candidate for legal representation, and appeal actions.

Generally, a skilled and experienced VA case lawyer will find errors in the VA's decisions that can be used in the veteran's favor, be they such things as under rated disabilities, or procedural and legal errors.

Thanks for the replies.

From what I have read my 90% right shoulder rating and 10% left shoulder disability which is secondary to my right shoulder condition should be considered a single disability. When you combine them and use the bilateral factor you get 100%. This along with my other non connected disabilities combining at over 60% should make me eligible for the SMC s rating. There must be a flaw in my reasoning and I welcome any comments.

Thanks,

courier71

[Philip Rogers]

Chuck75 - well put. The VA does what they want, anyway but, according to the court, we're finding that Congress meant something else. SMC"s" award is one of them. The court has stated that congress meant to basically do the best for the vet when considering claims. It will need to get to the court before the VA does the right thing.

pr

[broncovet]

I agree with Chuck and PR..and would add this depends on your defination of a "single" disablity rated at 100%. There are at least two ways of interpreting a 100% "single" disability:

1. It requires a rating of 100%.

2. Suffice with an example: A Vet is disabled due to a roadside bomb (a single disability). This SINGLE bomb caused multiple problems..arms, legs, PTSD, eyes, ears, etc. etc all the result of a single event...If this "single disability" caused from the roadside bomb, then these disabilities could combine to 100%. This Vet could have multiple problems from a "single disability"

I would appeal and argue that number two, above, is the "liberal interpretation" and the interpretative benefit of the doubt favors the Veteran.

[Chuck75]

A single "Nexus" yes. I doubt that the VA will ever consider the example as a single disability, unless forced to by the court and/or congress.

Using the example, A/O "presumptives" would become a single disability. I do have language in a C&P showing that the examiner considered multiple problems related to A/O exposures as a single disability. The Nexus was also single - - Vietnam, "Feet on Ground".

I agree with Chuck and PR..and would add this depends on your defination of a "single" disablity rated at 100%. There are at least two ways of interpreting a 100% "single" disability:

1. It requires a rating of 100%.

2. Suffice with an example: A Vet is disabled due to a roadside bomb (a single disability). This SINGLE bomb caused multiple problems..arms, legs, PTSD, eyes, ears, etc. etc all the result of a single event...If this "single disability" caused from the roadside bomb, then these disabilities could combine to 100%. This Vet could have multiple problems from a "single disability"

I would appeal and argue that number two, above, is the "liberal interpretation" and the interpretative benefit of the doubt favors the Veteran.