Form 526Ez To File For Smc-S?

[retroman]

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%?

[FormerMember]

Whoa, there. TDIU is based on one and only one disability- not all of your ratings. Always remember that. Look at your highest rating you mentioned -70% for bent brain. VA has decided your MDD is the cause of your IU. Got it? You may have been IU before you got the 70%, but it, and it alone, is now the IU factor.

Now, add up the other disabilities and if none are part of the MDD rating or connected to it, then you get the SMC S if you meet or exceed 60% on your other ones. Please be careful on the advice offered here. It's obvious some of it is erroneous. You do need to file an ez 526 because the new filing regs that went into effect March 25th demand it. Everything has to go through conversion to a word searchable. pdf at the Janesville/Newnan sites. I just listened to the whole NOVA briefing on it from the VA Dir. of Comp/ Pen Tom Murphy last Friday in SF.

Quite simply, Bradley stands for the proposition that one (1) TDIU rating over 40% (plus others to get to 70%) or a minimum of a 60/70% stand alone is the 100% rating rather than a true 100% schedular rating discussed in 3.350 (h). Once you have that, only then do you begin to add the others to see if you win the SMC S lotto.

Because you have been awarded the 70% for depression, that now becomes yourIU mainstay. All the others add up easily to over 60%. As to the effective date, it has to be June 2012 because that is the day the 70% supplanted the combo of others to be your IU.

It does help to read Buie v. Shinseki to see how a later rating like this creates an earlier date but in your case, they didn't award the 70% retroactively to before the 2011 ratings as they did in Buie.

Edited April 20, 2015 by asknod

[retroman]

Asknod,

Wow! Just as I was giving up my SMC S, you gave me some light into it. I must read your input about 10 times so far. Let me ask you one question thou. So it does not matter if I have IU or before my 70% depression or not? My MDD 70% is secondary to Thoracic pain which was received after IU. What you are saying is Ignore IU totally, but my one MDD(70%) could be IU factor and since my other disabilities meet 60% requirement I have a chance?

To clearify my rating. My award letter says "We granted entitlement to the 100% rate effective May 26 2011, because you are unable to work due to your service connected disabilities." Again, my 70% MDD was awared on 2 Apr 2012 after IU was awarded.

Edited April 20, 2015 by retroman

[broncovet]

Awesome, Nod.

This is in conflict with stuff we heard before, such as "Cruiser" who indicated that Bradley Peake would NOT mean that most IU people would be eligible for SMC S, reasoning that VA would assume "all" the disabilities made up the IU. Interestingly, and also in conflict with Cruiser hypothesis, The newer VA IU form asks which disabilitie(s) to base your IU on. This appears to be a trap for the unwary Veteran, with the Vet facing a huge dilema:

On the form, should the VEteran state that he seeks IU for "all" his disabities (helping his IU case but hurting potential for SMC S), or should he seek IU for just his highest percentage, and hurt his IU chances but help SMC S). The VA appears to be giving Vets a noose, hoping his testimony will be suicidal as far as benefits go. If he says "all his disabilities" caused IU, he may get IU, but not SMCS, but if he says "just one disability" caused IU, then his IU may be denied.

The VA is required to maximize the Veterans benefits..and to consider "all" potentials of entitlement: Its simply error for VA to "not consider" a Veterans entitlement to benefits.

I would love to see the Mr Murphy's transcript, and Im sure others would also, should you be privy to that.

[broncovet]

The answer to "which disability(s)" caused your IU would appear to be a medical determination, not to one which the Veteran's lay testimony could address.

IN other words, how is the Vet supposed to know "why" he can not work, his "bent brain", his hep c liver treatments, or his missing left foot, reminding you that with "bent brain" he just may not be able to figure that out! So, if he makes a wrong guess, does this mean his service connected bent brain means that VA gets to deny a portion of his benefits, because he could not or did not comprehend all the complexities of Bradley vs Peake?

[broncovet]

Veteran's "SMC TRAP" is line 7:

http://www.vba.va.gov/pubs/forms/vba-21-8940-are.pdf

[Buck52]

I was thinking the VA based the veterans worse disability for the IU (MDD)& if it precluded the veteran from seeking gainful employment (based on that particular disability)then IU is awarded, the other disability's will be rated separately for each % and if the veteran has a 60%rating or higher then he qualifies for the SMC's

This is why TDIU is a stand alone rating based on the MMD AT 70%, All other disability's are rated separately.

from what I understand.

When a veteran qualifies for SMC the VA has The ''DUTY TO ASSIST''
Unfortunately they sometimes don't do that.



.........................Buck

Edited May 19, 2015 by Buck52