HadIt.com Elder Philip Rogers Posted September 25, 2012 Author HadIt.com Elder Share Posted September 25, 2012 (edited) Im relatively certain that this has been decided..probably by the courts or maybe an OGC opinion. WacVet was on VBN, too, I think and Cruiser Vehemently said they were combined, while Wac Vet was just as sure the law was interpreted as added. If you do find something definitive on this, it would be great if you did a post with a link to the case law or OGC opinion as to whether they are added or combined. I think this could or would impact a rather large number of Vets, and it is even possible it would impact me. bronco - I don't believe it's been clarified by either the court or the OGC. I'll post when my case is resolved, however I believe the VA won't let it get that far, as the far reaching costs would probably bankrupt the USA, as it would set a precedence. Just think about how many claims would need to be re-adjudicated. jmo pr Try this link http://www.hadit.com...ivity&mid=10232 Or this one I tried to narrow it down to just SMC stuff https://www.google.c...iw=1614&bih=982 Thanks, tbird!!! pr Edited September 25, 2012 by Philip Rogers Link to comment Share on other sites More sharing options...
carlie Posted September 25, 2012 Share Posted September 25, 2012 I'll post when my case is resolved, however I believe the VA won't let it get that far, as the far reaching costs would probably bankrupt the USA, as it would set a precedence. Just think about how many claims would need to be re-adjudicated. jmo pr Hmmmmmmmm Like I've insinuated before - - - - Beverly Nehmer ! Link to comment Share on other sites More sharing options...
Berta Posted September 27, 2012 Share Posted September 27, 2012 Philip, I was reading this case looking for HB info but does the BVA here make the same point you have made regarding your claim? In Part: The Board notes that the TDIU rating was discontinued effective April 8, 2003, the date that the Veteran's combined disability rating increased to 100 percent schedularly. Therefore, the Veteran currently does not have a TDIU. However, the Board finds that to deny this claim on the basis that the Veteran no longer has a disability rated as totally disabling under 38 C.F.R. § 4.16 would lead to an absurd result, that result being that he would be entitled to a higher special monthly compensation rating, as explained above, so long as his combined rating remained at 90 percent or less, but would not be entitled to a higher compensation rating even though one disability still renders him unemployable and other disabilities have worsened such that a 100 percent combined schedular rating results. The Board does not believe that the Bradley decision and/or the statute intended such an absurd result and finds that the Veteran has a single service-connected disability ratable as totally disabling based on individual unemployability and additional disabilities separately ratable at 60 percent. ORDER Entitlement to SMC based on having one disability rated as 100 percent disabling and additional disability or disabilities independently rated as at least 60 percent disabling is granted. http://www.va.gov/vetapp09/files4/0935536.txt Link to comment Share on other sites More sharing options...
HadIt.com Elder Philip Rogers Posted September 27, 2012 Author HadIt.com Elder Share Posted September 27, 2012 Philip, I was reading this case looking for HB info but does the BVA here make the same point you have made regarding your claim? In Part: The Board notes that the TDIU rating was discontinued effective April 8, 2003, the date that the Veteran's combined disability rating increased to 100 percent schedularly. Therefore, the Veteran currently does not have a TDIU. However, the Board finds that to deny this claim on the basis that the Veteran no longer has a disability rated as totally disabling under 38 C.F.R. § 4.16 would lead to an absurd result, that result being that he would be entitled to a higher special monthly compensation rating, as explained above, so long as his combined rating remained at 90 percent or less, but would not be entitled to a higher compensation rating even though one disability still renders him unemployable and other disabilities have worsened such that a 100 percent combined schedular rating results. The Board does not believe that the Bradley decision and/or the statute intended such an absurd result and finds that the Veteran has a single service-connected disability ratable as totally disabling based on individual unemployability and additional disabilities separately ratable at 60 percent. ORDER Entitlement to SMC based on having one disability rated as 100 percent disabling and additional disability or disabilities independently rated as at least 60 percent disabling is granted. http://www.va.gov/ve...es4/0935536.txt Berta - in this case the vet has combined ratings that total 60% or more. In my case I have 60% because my disabilities "added together" total 60% and this is my argument. pr Link to comment Share on other sites More sharing options...
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now