tdiu Cue Claim - TDIU SMC-S

[fullcount15]

Last month I was awarded a 100% scheduler rating for my COPD.  I am also rated for traumatic arthritis right ankle – 20%, traumatic arthritis left ankle ankle – 20%, left foot pes cavus with arthritis and plantar fasciitis – 20% and right foot pes cavus with arthritis and plantar fasciitis – 20%.

I was also awarded Special Monthly Compensation (SMC-S).  I wasn’t aware of what SMC-S was so I did some research to understand the additional benefit.

Prior to my 100% scheduler rating I was awarded TDIU in December 2008 for my COPD (rated at 60%). In addition I also had the aforementioned SC ratings for traumatic arthritis right ankle – 20%, traumatic arthritis left ankle ankle – 20%, left foot pes cavus with arthritis and plantar fasciitis – 20% and right foot pes cavus with arthritis and plantar fasciitis – 20%.

After researching SMC-S benefit it seems as though I should have been awarded the SMC-S benefit when I was awarded my TDIU in December 2008.

What would be the best course of action.  CUE claim?  If so, can I submit a cue claim via e Benefits?

Thank you in advance for any assistance anyone can provide.

[Berta]

to add... Asknod said:

"Rather, send in all the ratings showing entitlement to SMC S in 2008 based on the TDIU plus an additional 60% unrelated to the COPD and see what they say"

Yeah!!!!!!!!!!!!!!!

this is one of the strangest ratings I have ever seen...meaning the 60% TDIU for COPD and the additional foot condition ratings....

Are you able to scan and attach here their reason and basis for the initial TDIU award, and their evidence list? Cover C file, name etc prior to scanning it.....

I am kind of surprised they did not award the 100% schedular long ago.....

If the SMC S isn't for housebound, did they add up the 4 additional 20% foot ratings to get 60% for the "S" award because they are all an independent system...from the COPD????? this is really odd.

 

[broncovet]

It is CUE if VA fails to follow its own regulations, AND by not doing so it is outcome determinative.   As Berta suggested, you have to specify the regulation(s) they violated for CUE.  

Edited November 17, 2016 by broncovet

[Buck52]

Ms berta

I am thinking his S.C. COPD got him to the TDIU ?

& his other  20% S.C. Ratings for his foot problems disability's are separate  that add up to more than the 60% requirement for the SMC? Maybe not? but I don't see how or why they would add those to his COPD Rating?

[Buck52]

When a veteran is Awarded TDIU don't that establish him as having a 100% rating? even though he may have reach the TDIU on the extra scheduler 34.(a) or (b) with a combined rated of 60% or more.

in other words don't a TDIU Rating quailfy the Veteran for a 100% rating? no matter how he got it.

When TDIU is established AND AWARDED and any other separate S.C. disability's  that  will add up TO 60% This actually means

 the veteran has met the criteria for SMC -S

I don't see CUE, but he could file for it that's up to him to decide.

 but in my opinion  it would be better for him to use the Regulations in his favor to request the SMC S back to the date he should have been awarded for in 2008.

As elder member Asknod points out.

Edited November 17, 2016 by Buck52

[Berta]

That is what I don't get Buck...

and I apologized to you on the AO thread---I did not mean to imply you said the claims were not easy..you didnt say that at all and I stated it wrong

and I Appreciate greatly the help you provide here every single day and again you are making a good point..... I too am baffled by the TDIU award this vet got   but I think there might be a CUE in that specific 2008 award.

I need to read the citations you mentioned again,.....I dont get it....maybe the veteran has to use oxygen all the time now so obviously with that factors and the severe foot conditions ,(which could also be worse by now,but are still at same 2008 rating, so maybe they were not claimed for higher ratings in the more recent COPD claim.)..of course that would sure make the veteran housebound in my opinion without regard for the 100% plus 60% criteria...he has 80% in real math for the foot conditions...we need more info and hopefully he can attach the 2008 decision here.

I also wonder if he ever was awarded SSDI and if so what for and does VA know it, and when did they know it,  if it is solely for his SCs.

[Berta]

one more thought:

This is where the CUE might be….they did not consider the bilateral factor in the 2008 award….

Nor did they consider the foot disabilities have a orthopedic factor that impairs a single body system ( both feet, ankles) 38 CFR 4.16 a, b.

 

“TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances.  38 C.F.R. § 4.16(a), (b).

 

If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  38 C.F.R. § 4.16(a).”

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp16/Files3/1623357.txt

I think they made CUE involving this part of the regulation :

"if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more." The bilateral factor alone would have gotten him to 70%, thus TDIU and SMC...in 2008 ...or the single body systems of the orthopedic factor  ..........or maybe I am just not reading this reg right.......?????

Of course we don’t know how the 2008 rating sheet looked yet so we can help more when we know more.