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retroman

Form 526Ez To File For Smc-S?

Question

Hi, Just got off the phone with VA and asked if I am qualified for SMC-S under Bradley V Peake and the lady told me to file EZ form 526. I told her it’s the statutory and I don’t need to file the form and she told me that’s the only way for rater to look at. What do you think? Below is my disabilities and I need you to tell me if it’s a shot or not.

Thoracic 40%

Right lower extremity(secondary) 10%

Left lower extremity(secondary) 10%

Cervical spine 20%

Right dominant upper(secondary) 20%

Headaches 30%

Scares on face 30%

Allergic rhinitis 10%

ED(secondary) 0%

IU approved on all above affective date of 1 Jun 2011

Depression (secondary)70% affective date of 2 Apr 2012.

So is this what Bradley V Peake calles 100%+60%?

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Here's a link to a an article which may help explain it better Berry Law Firm ptsdlawyers.com

In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court of Appeals for Veterans Claims (CAVC) heard arguments as to whether the language in 38 USCS section 1114(s) “a service-connected disability rated as total” includes grant of total disability based on individual unemployability (TDIU). The VA argued the language refers to a total “schedular rating” and excludes TDIU. If VA’s argument were correct, it would mean veterans would only be able to apply for section 1114(s) special monthly compensation if they had a single disability rated 100 percent. However, the CAVC did not agree with VA’s argument.

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Ok. Here is the deal. Yes, your claim to SMC S is inferred, and VA should have adjuticated it. Since they apparently did NOT do what they were supposed to do, you can/should file.

If you win your claim, as you should, you may have to fight AGAIN for the EED. Or, its possible you could win both the claim and the eed if the VA decides to do the right thing, and give you your SMC S, at the correct effective date which would be when you first qualified, since its not required you request statuatory SMC S.

Bradley Peak is very complicated. It will likely boil down to "what" disabilities did the VARO determine made you unemployable. If it was "just" your depression, then you should win. However, if VA considered "all" your disabilities in awarding IU, then you are unlikely to prevail. How will you know? Nowadays, VA makes you committ. The new IU forms ask which disabilitie(s) you think make you unemployable. If you list all of them, you probably wont get SMC S under Bradley vs Peake if you do get IU. If you list just ONE, then you may not get IU at all. Its a slippery slope.

Bottom line:

If you think you are eligible for SMC S under Bradley vs Peake, (and I agree it looks like you may qualify, based on your post) then I recommend you have an experienced Veteran attorney look it over. YOu can then post what your lawyer says, and, likely, one of us will opine if we think your attorney is right or not. You dont have to hire the attorney, necessarily, but I would consider his opinion carefully.

Right now, since I dont know if your IU was due to JUST depression or if it was due to everything, I can not opine on whether or not I think you should get SMC S. I do think its worth looking into, tho.

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I was thinking the VA goes by the veterans % beings each disability is rated separately?

if the veteran receives TDIU on one disability that causes him to not be gainfully employed then TDIU is consider due to he can't work, then if the Veteran has multi-disability's that meet the SMC's % ...> The Veteran should be awarded the SMC.

JMO

..........Buck

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Ok, Thanks for all your replies. I guess I will drop my case because my IU is based on all my disabilities (except Depression), not based on single IU. I do have one other question. My depression 70% was awarded after IU. With it, now I am about 96% by the VA math. Am I still IU or a scheduler?

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If you were IU before the 70%, file.

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