ptsd Am I Eligible Or Smc (S) Now?

[nwlivewire]

First time poster and have a question about SMC (S)

I have been told both "YES!" and "NO!" as to my eligibility to apply.

Can you please help me by providing your answer? And,how you came to logically/legally arrived at your answer?

My situation is as follows:

Army PDRL discharge - APR 2012 - 70% - IDES process (VA/Army both at once)

ARMY RATED ISSUES:(ARMY USED VASRD %)

1. LOWER BACK = 40%

2. R. SHOULDER = 30%

3. NECK = 20%

40 + 30 + 20 = 70%

VA FINALIZED IDES CLAIM - JUN 2012 - RETRO TO APR 2012 = 100% P&T

VA RATED ISSUES

1. PTSD = 70%

2. BLADDER = 60%

3. LOWER BACK = 40%

4. R. SHOULDER = 30%

5. NECK = 20%

6. TINNITUS = 10%

AT THAT TIME, VA "DEFERRED" 3 ISSUES FOR FURTHER ASSESSMENT, BUT ALLOWED THIS 100% P&T RATING/ISSUES TO PROCEED

70 + 60 + 40 +30+ 20 + 10 = 100%

SEPTEMBER 2013, VA FURTHER AWARDS RATINGS FOR THREE "DEFERRED" ISSUES - AND, RETRO'S THEM BACK TO DATE OF ORIGINAL CLAIM ABOVE - APR 2012

(THESE ISSUES WERE PART OF THE ORIGINAL CLAIM, but it took the VA another 15 months to decide and then rate them)

THESE VA RATED ISSUES ARE:

1. ASTHMA = 30%

2. R. KNEE = 10%

3. L. ANKLE = 10%

********************

So am I eligible to apply for SMC (S)??????

Or any other code???

Thank-you very much for your time!

V/R,

nwlivewire

[FormerMember]

<<<Fighting this battle right now at the COVA. My husband is 100% schedular rated, with one of those ratings at 60%, but he also has a 50% rating for a condition upon which the SSA based his disability award.>>>

Perhaps there is some misunderstanding of what a 100% schedular award actually is and that is what is causing the confusion. A 100% schedular rating is 100% for one (1) disability. TDIU is basically a 100% rating for compensation purposes, too. Make no mistake about it. If you have a compendium of ratings and none of them, in and of itself, is actually 100% for any given disease/injury, or the TDIU is not for one specific disease/injury, then you do not have a true 100% schedular rating. Some Diagnostic Codes do not go up to 100% so it is impossible to attain it but if you are granted TDIU, that stands in place of it. So, Lotzaspotz, if the SUM of your disabilities adds up to 100%, that is different from 100% schedular. Does that shine any light on it? VA is big on semantics if you had not noticed yet.

a sends

[john999]

I got 70% TDIU for a mental health issue. A few years later I got connected for DMII, PN and CAD. This was more than 60%. I requested "S" using Bradley v Peake. I got it via the VA calling a CUE on themselves.

[Chuck75]

It would seem that the VA wants to hold a strict line on a single condition rated at 100% P&T scheduler vs. 100% TDIU P&T and the CAVC might/(has) disagree(d).

A non precedent ruling might go either way in a specific case, since there are seemingly valid arguments either way.

Here's another out for the VA, when they evidently did not consider SMC, as shown by SOC's, etc.

Using "Presumption of Regularity", The VA might say that they did, decided against it, and forgot in the heat of things

(Get it out the door before the supervisors start screaming!)

to mention SMC in the SOC, etc. How well this would set with an appeal judge could prove to be interesting.

[lotzaspotz]

We will find out why a 100% P &T schedular rating, with one of those ratings at 50% providing the basis of An SSA disability award, along with a 60% disability rating as part of that 100%, plus an additional 70% above that 100% schedular rating, automatically eliminates a veteran from being considered for TDIU, and subsequently, SMCs on statutory authority.

If the Court's job is to strictly determine if due process was followed, we're hoping to hear what possible statutory justification exists to uphold such an action.

[FormerMember]

Careful on that phraseology, C75. 100% schedular comes first.-then P&T- usually two or more years after unless you know the trick to speeding it up. At that time you become 100% P&T, VA has no argument about considering TDIU@ P&T the same in spirit. That argument fell by the wayside before Bradley. Buie simply refined what order you could consider them as having been awarded so as to maximize SMC-S to the earliest date it was ascertainable that Mr. Buie was entitled to it.

I know a few Vets who are 100% schedular but have not been granted P&T yet so there is an orderly progression. Once you have that 100% schedular or the TDIU, wrap up the P&T and get that 10-year clock ticking , the next battle is either collecting that extra 60% or proving you are essentially housebound in fact. I'd fill out on VA Form 21-2680 from a doctor, preferably your VA PCP if you have one. Send that in and see what happens. Ask him to make the statement "Substantially housebound" and you're in. Make sure you submit it personally. These documents sometimes don't get there through VA channels at the VHA.

[FormerMember]

I still see a problem in phraseology, Lotzaspotz. The diagnostic code uses percentages to rate your illness/injury. They come in increments of 0, 10, 20, 40, 60 and 100% for many diseases. They come in increments of 10, 30, 50, 70 and 100% in the case of mental illnesses/PTSD. Some end at 60% for back injuries. A "100% schedular rating'' is one stand alone rating-not a compendium of several different ratings that add up, using the 4.25 tables to 100%. 100% schedular is 100% for one, and only one, disease or injury. To win SMC S with TDIU, again, one single disease or injury must be 60% or more and be the sole cause for the TDIU, not the other means test of 40% for one and the rest adding up to 70 %. From what you are saying, you are adding several different ratings together to arrive at 100% and calling it "schedular". Correct me if I'm wrong. Sorry if I misunderstand you.