tdiu Smc "s" Question / Angle

[dav_marine72]

Hello Fellow Members,

I am in the process of discharging my attorney's who quite frankly are not earning their pay. I was awarded TDIU in 2009 and have been on appeal for A&A and or Housebound ever since. An old service officer I ran into yesterday questioned something and I wanted everyone's input.

In addition to trying to get housebound because I'm housebound the service officer questioned as why I was not receiving SMC S for my TDIU + other conditions. So here is the deal. The verbiage used in awarding my TDIU was as follows:

It is as least as likely as not that the Veteran is unable to sustain gainful employment solely based on his mental condition.

So in addition to the mental TDIU rating if we call it that I was 40% back, 30% asthma, etc. which totals 70% outside of the mental rating at that time. Is this another angle I can play up? Prior to the TDIU award I was given 6 months of temp 100% for my back surgery and was given SMC S for my mental 50% and asthma 30%. They then took it away saying I didn't meet the criteria for S anymore.

Then in 2013 I was bumped up to 70% combined for my back and 90% overall without the mental rating.

Thoughts?

Thanks in advance.

Mike

[Berta]

This recent BVA decision contains the SMC regulations and how the "S" award is determined.

Vet had TDIU predicated solely on

" The combined rating for DVT of the left lower extremity with varicose vein insufficiency and DVT of the right lower extremity with varicose vein insufficiency, including the bilateral factor, is 70 percent."

The TDIU is therefore for "one disability."

"The Veteran has additional service-connected disability independently ratable at 60 percent, namely status post pulmonary embolism, which is separate and distinct and involves a different bodily system. "

"ORDER

Entitlement to special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114(s) is granted, subject to the law and regulations government payment of monetary benefits."

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp12/Files4/1226846.txt

SMC S can be awarded either for 100% (TDIU as explaned in the decision) plus 60% as an additional independent disability or under the Housebound regulations.

I won a SMC S Housebound award posthumous claim in 2012.

I think the best evidence I had was the fact that the local VA Van Day Treatment had to pickmy husband up and bring him back home again so he could attend Day Treatment as he could no longer drive. His SC PTSD had become excerbated by a 1151 stroke and in that respect it was safer for him (and for me) to be picked up by the VA van.(and be in Day treatment)He also had extremity weakness PN and PAD plus visual disturbances, making it often difficult for him to walk.

I had more evidence as well (forget what it was) that satisfied the SMC S criteria below for housebound..

He also satisfied the 100% (SC PTSD) plus 100% CVA under 1151 S criteria but this was a detailed award ,involving a SMC S Cue claim, and it didnt matter to me what S award criteria they used.

Housebound is awarded by medical evidence. I gave VA some lay statements but I backed them up with documented medical evidence , Day Treatment records, his PTSD shrink records, .Voc Rehab records and the VA also had his 2 separate awards for SSDI---one at first for the 1151 CVA and one solely for the PTSD, awarded under a reconsideration of the CVA award.

I dont quite understand the breakdown here of your TDIU and other disabilities but others will chime in.

Edited April 4, 2014 by Berta

[dav_marine72]

Thanks Berta, your the best!

Mike

[john999]

See I got "S" because my TDIU was entirely separate from the 60% rating I got about 5 years later. I used Bradley v Peake. TDIU was 70% for rating I got in 2001 and the housebound was for an extra 60+% I got for DMII and complications of DmII some years later. That was the key.

[dav_marine72]

Thanks John. Your always a great resource.

[citiba60]

I'm in receipt of a&a homebound and got every letter in the VA alphabet except R2 Quad. I'm R1 also now the difference is I have 100% asthma, 100% disability loss of use each feet + 60% for back and another 60% for Neurogenic badder secondary to back, the above makes it easy to get A&A and Housebound.Once you have 100% on one condition and 60% lost of use of an organ secondary to the first condition in my case is the nerves on my back you qualify for special monthly comp.

Hope this help.