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

[lotzaspotz]

In Bradley, the Court held that when a veteran has several service connected conditions that combine to 100% schedular, if the veteran would be monetarily advantaged by having just one service connected condition support a total TDIU rating, and other service connected conditions are at least 60% disabling, the VA is obligated to rate the case to maximize the benefits that can be paid to the veteran.

Instead, the VA told my husband that BECAUSE he is already 100% schedular, he will not be re-considered for a TDIU rating that would then make him eligible for SMCs. Automatically slam shut -- no consideration. That is the crux of our appeal, based on statutory grounds, which hopefully the Court will not misinterpret as a disagreement with how the evidence was weighed, which is not within it's jurisdiction.

[lotzaspotz]

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.

I get your point, Alex. I think it's better said that perhaps my husband needed extra schedular consideration in view of the ratings he had and should have been considered for TDIU, then SMC. I'm not seeing how his total schedular (especially since he's got a 60 and a 50 that is the sole basis for SSA) rating plus 70% automatically makes him ineligible for TDIU.

Edited June 1, 2014 by lotzaspotz

[63SIERRA]

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.

lotza are any of the other disabilities secondary to the primary 50 disability/

[Philip Rogers]

I have a claim for an SMC "s" award dating back to my original claim date of 4/89, that continues to be denied. My original claim was because my 100% ptsd award/condition kept me substantially housebound but it's been denied for 25 yrs. During the past 10 yrs I've added 20, 10, 10, 10 and 10 but because of the combined ratings table they continue to deny, even though once you're 100%, they can't use the ratings table, as it's similar to double jeoprody(sp). I've been to the BVA four or 5 times and to the Court twice and am still appealing. For a while they used the fact that I was able to go to my medical appts as a reason to deny me but that's now been disallowed. Never, ever, ever, give up!!! I just need to live long enough to win.

pr

[FormerMember]

Okay. I think I see the problem. Bradley and Buie are on point here as they illustrate that the predicate for TDIU can metamorphose as additional ratings accrue. The sticky point that might queer the deal is simple. If the predicate for the SSI/SSD was TWO items rather than one stand-alone condition, VA will say you miss the SMC S boat because one individual condition, solely by itself, is not the predicate for the TDIU.

I don’t know what order your ratings were awarded but VA cannot use the SSI/SSD records to the exclusion of all else as their rationale for saying “Well. The reason he got SSI is he had A and B wrong with him.” VA is not beholden to SSI law and they reiterate it all the time. Their ratings are all that matter. If the hubster has a 70% and it renders him unemployable, that should be the lynchpin for TDIU. As such, any and all other conditions , assuming they entail different body parts, can be assembled via 4.25 to achieve the extra 60%.

Here’s ammo to rebut it.

http://asknod.wordpress.com/2014/02/13/cavc-mekus-v-shinseki-idle-hands-are-the-devils-workshop/

Note VA opted out of the blue to revisit Mr. Mekus’ claim after it was already 10-year protected. This sets the precedence to reopen it and reassign the rating a new basis in fact. They failed the CUE test but that is immaterial here.

The important thing to note is that you can rearrange the order of the conditions (via Buie) to seek and obtain the highest and best rating possible (AB v. Brown 1995) and use the 70% for the TDIU if it can be proven that it, alone, causes unemployability in its own right.

Mekus stands for revisiting claims to revamp them to comport with the actual facts. It was a futile CUE exercise on VA’s part but gives you the legal right to do the same thing. Sauce for the goose, etc. Read Mekus carefully and use the cites they refer to in order to fashion your case.

The important thing about SMC-S and case law like Buie shows it makes no difference in the scheme of things which came first-the chicken or the egg. The end result is a compendium of ratings that have an aggregate value of over 160%. The order most advantageous to the Veteran should be the one employed by VA.

I also beg to disagree with PR on this. The 4.25 table, once you have accomplished the TDIU rating, is employed to add up the remaining ratings. If they add up to 60% or more and involve disparate body systems, you win the S. Period. SMC S is unique in that it is awarded at any time it can be proven you were entitled to it. It does not hinge on when you filed for it or if you suddenly qualified for it more recently. The effective date of the claim is the focal point for SMC-S. Thus, if you win an old claim and it provokes the SMC S retroactively, then that is the effective date for the S and there is no more case or controversy on the issue.

It is convoluted case law but I love judicial contretemps. There is so much VA law that is in flux. VA would have us believe it is all settled and we cannot disturb it but that is the essence of law. It is not immutable. Certain aspects of it are but we inhabit a nonadversarial judicial environment that encompasses a Veteran-friendly venue in which to present our claims. Every benefit that can be awarded must be awarded us. There is no room for them to interpret it. That is the job of the CAVC, the Fed. Circus and the Supremes. Your appeal simply will situate it in the proper venue for a nuanced, correct interpretation. I’m sure Willy Gunn didn’t go in thinking he was going to get his front teeth rearranged on Buie.

I look forward to seeing your name enshrined right up there with Gilbert, Mekus and Macklem.

[lotzaspotz]

Sierra, no, they're not secondary.