tdiu will it fly?

[GatorNavy]

Trying to figure out if this is a valid claim for TDIU housebound:

Nerve impingement cervical 20% (Primary)

mood disorder 50% (secondary)

THE ABOVE DESCRIBED IN THE DECISION AS TOTAL

RA 40%

DDD 20%

HCV 20%

Thanks in Advance!

 

 

[Buck52]

Well they should consider a 90%combined veteran that can't work due to his  S.C.disability at 90%  90% That's pretty f***up

So they are make this IU A 100% Rating under the 4.16 (b)38 CFR's  although your getting paid at the 100% rate , your total combined over all combined rating is 90%

Now the thing is  when an increase is  there the 100% is the highest a vet can go with that disability.

So the Veteran needs a separate S.C. Disability rating according to the regs of at least a 60% or higher to meet the criteria for SMS S1 H.B.

So my thinking is  when a Veteran is awarded TDIU P&T  HE IS A 100% DISABLED VETERAN.  and if he has another disability that is separate and gets rated 60% S.C.  Then he should meet the criteria for SMC-S and inferred by mandatory rating procedure.

jmo

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

 

[GatorNavy]

No one here has confused me. Rather, you all have been a wealth of information. What confuses me are the existing regulations. After reading the VAOIG report that came out (attached), it is apparent that the ROs missed the boat with how they have been deciding housebound claims.

IU was granted sometime ago with an effective date back to 2010. I am in the process of constructing a claim argument that will ask for housebound to be effective back to 2010, when IU actually started. Of course there are rating increases on appeal now that may have effective dates that could impact the housebound claim.

VAOIG-15-02707-277.pdf

[FormerMember]

The SMC S codicil is simple. If you have a 100% disability, either composed of a 100% true single schedular disability or one composed of a a TDIU rated as 100% for compensation purposes,  you may qualify for SMC S based on your medical condition essentially "trapping" you in your own home. This would not be the same as a Vet with a 100% schedular or TDIU who has an additional 60% or more of combined ratings, none of which are similar to the predicate 100% disease/injury. Do not confuse the two concepts. 100+60 jurisprudence is explained better here: https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

For example, you cannot add up a bunch of DM2 stuff and then throw in all but one of the 20% Peripheral neuropathy ratings to get to TDIU. Saving one 20% PN extremity rating to add to the other diseases causing them to add up to the 60% or more would be forbidden as the peripheral neuropathy naturally is part and parcel of the DM2 TDIU P&T. Your true extra 60% or more gives you a kicker that Congress intended to reward due to being more severely disabled as to "keep you home from working" even if you could. If the disability is truly medical and not rated 60% or more above the TDIU/100%, you still get the second shot at it. 

BroncoVet's argument is confusing. His case parallels Buie versus Shinseki rather than Bradley v. Peake in that he disputes the order in which they were awarded. Had he won the TDIU in 2002, the extra 100% for MDD in 2009 would be that 60% (or more) kicker giving him his SMC S. 

 

[broncovet]

Alex...Va has continued to deny TDIU, at first arguing that it is moot, (RO decision dated in 2009)  then denying it again after 2012 BVA remand.  Currently, the issue of TDIU is still under appeal, and my law dog has gotten a JMR from the CAVC on the TDIU issue.  

I read your article on BUIE, and it does seem relevant.  https://asknod.org/2011/09/27/cavc-buie-5-v-shinseki-0-2011/

[Buck52]

I may get reduced on my SMC S-1 H.B.??? 

In 2002 I was awarded TDUI P%T  with an increase from 50%  I  got back in 2000.  

I put in for increase in 2001  got a letter propose to reduced my 50% back 0% based on a lying VA EMT C&P Examiner.

I NOD this proposal to reduced based on the statment of the C&P Examiner.... Request for a DRO Hearing at my R.O. Was Accepted.

Got IMO from a Board certified specialist  and used it as evidence against this VA C&P Examiner..

here is what the DRO Decided

BASED On the certified board specialist and his examination of this veteran and with medical evidence  this veteran disability is real and with a DRO AND A Rating specialist present at his Hearing its obviouse with this veteran evidence  a increase is warranted and not a decrease  to Reduced this veteran benefits back to 0%  

The DRO Expidited my claim that day and filed the TDIU with P&T  How he did this was he gave me a 10% increase for tinnitus  that put up to 60%  then he gave me a 30% increase on my orginal 50% disability..this is a combied rating of 90% useing 38 CFR the 416 (b)  Put me up to TDIU P&T  

Ok now remember I am only rated a 90%over haul Rating.

So does being on TDIU P%T Make me 100%???

I say it does  but I'm not 100% sure??

Iunderstand a prior rating will not be used for EED if the regulations change.  (for me the EEDwould go back to 2002 if this was true.

Here is how I am rated  90% combined rating with TDIU P&T Ok I been rated that for 14 years ...getting paid at the 100% rate   

Now last year I filed a PTSD Claim and was awared 70% .SC. PTSD CHRONIC

So they inferred  the SMC S-1 because the VA Rater said I meet the SMC Criteria..and this is a statouory Rating using the special rating table for SMC S -1 With wife as dependent.

 

Ok from thos OIG investigations/Inspection of Records/C-FILE ect,,ect of Different RO.s Around the country GatorNavy put up

They mention any veteran (in my case)ombined rating 90%IU will be reduced from SMC-S because he was not  rated 100% at the time he was rated 70% for another separate S.C. Disability.

 

OIG Investagation :

What We Found We identified errors in 45 of 250 cases (18 percent) in which veterans were entitled to statutory housebound benefits based on having a single disability rated as 100 percent disabling and one or more disabilities independently rated at 60 percent or more. Errors included failure to grant housebound benefits, failure to pay housebound benefits that had been granted, and prematurely reducing housebound benefits. We also found errors in 127 of 247 cases (51 percent) in which veterans were being paid compensation at the housebound rate. In 10 additional cases, we could not determine whether housebound in-fact benefits were accurate because VBA’s eligibility criteria were unclear. We identified different error rates within each group of our stratified sample. As a result, we estimated an overall error rate of 10 percent for veterans being paid compensation at the housebound rate, and a 27 percent error rate for veterans with combined evaluations that were 90 percent or less. Generally, the inaccuracies we identified involved housebound benefits for unemployable veterans, entry of SMC codes into the electronic system, and housebound benefits on an in-fact basis. Why This Occurred Generally, VBA staff failed to grant statutory housebound benefits because they overlooked the issue, and VBA’s electronic reminder was ineffective. Errors for veterans being paid compensation at the housebound rate were due to ineffective training and a multi-step process for entering temporary housebound codes in the electronic system. VBA staff were also confused as to the requirements for use of the SMC Calculator. Finally, VBA has not clarified the meaning of “substantially confined” for housebound in-fact determinations. What Resulted Veterans entitled to statutory housebound benefits did not consistently receive correct benefits decisions. Based on sample projection results, we estimated errors in 33,400 of 186,000 cases. We estimated that these errors resulted in veterans being underpaid $110.1 million through February 2015, and receiving recurring underpayments of $1.8 million per month as of March 2015. In addition, we estimated that VBA staff delayed paying veterans $54.3 million. Errors for veterans receiving compensation at the housebound rate also resulted in incorrect benefit

/???

In other words a veteran with TDIU P&T BUT WITH A 90% COMBINED RATING does not make this Veteran 100% correct? but if he gets another rating 60% or higher  this  makes the Veteran 100% plus eligible for the SMC.-S 1

That's I understand  how they rated me.

Edited November 3, 2016 by Buck52

[Buck52]

broncovet

if your 100% MDD S.C.?  THEN THE IU would be Moot? correct? IU Is usually given when a vet can't work due to his S.C. disability...But if you already have a 100% S.C. Disability for MDD...then wouldn't that make the IU Moot?

If your trying for your IU EED? They have you over a barrel now  with the IU being Moot.

If your 100% MDD what about that EED? Is it correct?

If you never been rated for IU Then where is the EED?

this is the only reasoning I can see.

Edited November 4, 2016 by Buck52