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Broncovet,

I am still a little confused on the total single disability requirement for obtaining a SMC "s" rating. My 90% right shoulder rating was granted approx 10 yrs ago and in addition I already had a 10% rating on the left shoulder. As far as VA regulations in effect 10yrs ago should the VA have combined the two upper extremity ratings to get a single 100% rating and thus meet the first part of qualifying for an s rating? It seems I can only claim CUE for the rating decision 10 years ago and with a CUE appeal the decision is based on the rules in effect ten years ago and not 1973.

Am I looking at my situation the correct way or are there other points that I am missing?

Thanks for your help.

courier71

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Courier

Welcome to the "Confusion on the SMS club". Based on the case previously cited:

5. In accordance with the law in effect in February 1973,

the
combined disability ratings for the right and left upper

extremities constitute a single service-connected disability

rated at 100 percent
, and the additional disabilities of the

head and face, back and thorax, and left thigh are

independently ratable at 60 percent or more.

...My interpretation would be that the
"combined disabilty ratings .....constitute a single service connected disability rated at 100%",
that is, you would qualify.

However, I would indeed expect the Va to fight you on this tooth and nail, just like they do the rest of us. Bottom line:Appeal and keep appealing until you win. Get an attorney if you need to .

broncovet

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  • HadIt.com Elder

Lets not forget one major fact of these decisions:

BVA decisions have no legal precedent issues regarding using them in another veterans claim. We can quote them but they will most likely be ignored.

Only CAVC opinions carry the weight to have a direct effect on another claim.

The keyword is this topic should be the word total.

At any time the VA mis- applies the rating schedule including issues of special monthly compensation, an arguement for CUE becomes valid provided the decision is final.

If it is not final, a NOD of a current decision is necessary to get the VA to apply the correct criteria according to the Title 38 parts 3 and 4.

J.

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Broncovet,

I am still a little confused on the total single disability requirement for obtaining a SMC "s" rating. My 90% right shoulder rating was granted approx 10 yrs ago and in addition I already had a 10% rating on the left shoulder. As far as VA regulations in effect 10yrs ago should the VA have combined the two upper extremity ratings to get a single 100% rating and thus meet the first part of qualifying for an s rating? It seems I can only claim CUE for the rating decision 10 years ago and with a CUE appeal the decision is based on the rules in effect ten years ago and not 1973.

Am I looking at my situation the correct way or are there other points that I am missing?

Thanks for your help.

courier71

First ... as has been stated BVA decisions hold no precidence .. you can quote them all day long but they are meaningless to your claim. They only serve to show how you claim might be decided...

Secondly ..(If I understand you correctly) I fail to see how a seperate 90% rating from 10 years ago, and a seperate 10% rating older than 10 years could be construded as one injury. Both of these shoulder injuries were not incured at the same time from the same incident. If I understand correctly you received the 10% rating as a secondary issue to the right shoulder. I do not think this would fall into the catagory of a " single disability".

many veterans are rated for secondary issues.. for example my eyes are rated secondary to my lung disease because of steriod use... The va will not combine secondary issues for the purpose of " single disabilities"... if they did... many more would be combensated at 100% than are now....and many more would be granted Housebound....

Edited by Teac
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  • HadIt.com Elder

I believe you have a CUE at 10 yrs ago. Whether or not you do, is another matter. I would file the CUE claim and appeal, appeal, appeal, if they disagree. The only stupid question is the one not asked. The only claim w/no chance of winning is the claim not filed. So I would go for it. jmo

pr

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Teac

I get your point regarding a single disability. I also have a 10% rating for right shoulder scars caused by 3 right total shoulder replacement surgeries and 2 right shoulder rotator cuff repairs. My right shoulder has more stiches in it than an old quilt.

courier71

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