SMC-S and -K

[FormerMember]

I think the bigger discussion here is to define "100% P&T" for Seejeremy. A 100% rating is just that. From reading the initial post, I note you have no single rating of 100%. You are getting either 100% "combined" or you are getting TDIU for the 70% (major depressive disorder recurrent  70%). P&T is a determination that you are not going to go through any more rating processes and they are done with you. By law, VA is required to "maximize" your ratings. Here, you could legitimately state the MDD is the sole cause of your unemployability. That would leave other ratings that combine to an additional quantity over 60% entitling you to SMC S. By law, VA is required to do this. I've noticed a propensity to just add them up recently and call it a 100% combined and make no attempt to determine entitlement to S. Remember, the raters are under a lot of pressure to produce.

Actually, the 70, 50, 40 and 40 add to 95% which rounds up to 100% combined. The additional 30, 20, 10,10,10, and 10 add up to 64% which rounds down to 60% and is still enough to qualify for SMC S without asking them to "rejuggle" the MDD to TDIU 

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[broncovet]

Fast letter 09-33 explains it THIS way:

Quote

Compensation and Pension Service Fast Letter 09-33: Special Monthly Compensation at the Statutory Housebound Rate 38 U.S.C. § 1114(s) provides that SMC at the (s) rate will be granted if a veteran has a serviceconnected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of a service-connected disability or disabilities. VA’s implementing regulation at 38 C.F.R. § 3.350(i) essentially mirrors the statutory language. Prior to the CAVC’s decision in Bradley v. Peake, VA excluded a rating of total disability based on individual unemployability (TDIU) as a basis for a grant of SMC at the (s) rate. VA relied upon language in citing VAOPGCPREC 6-99, dated June 7, 1999, in which the General Counsel stated that a TDIU rating takes into account all of a veteran’s service-connected disabilities and that considering a TDIU rating and a schedular rating in determining eligibility for SMC would conflict with the requirement for “additional” disability of 60 percent or more by counting the same disability twice. On November 26, 2008, the Court, in Bradley v. Peake, disagreed with VA’s interpretation and held that the provisions of section 1114(s) do not limit a “service-connected disability rated as total” to only a schedular 100 percent rating. The Court found the opinion too expansive because it was possible that there would be no duplicate counting of disabilities if a veteran was awarded TDIU based on a single disability and thereafter received disability ratings for other conditions. The Court’s holding allows a TDIU rating to serve as the “total” service-connected disability, if the TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to SMC at the (s) rate. The Court held that the requirement for a single “service-connected disability rated as total” cannot be satisfied by a combination of disabilities. Multiple service-connected disabilities that combine to 70 percent or more and establish entitlement to TDIU under 38 C.F.R. § 4.16(a) cannot be treated as a single “service-connected disability rated as total” for purposes of entitlement to SMC at the (s) rate. Based on the Court’s decision in Bradley, entitlement to SMC at the (s) rate will now be granted for TDIU recipients if the TDIU evaluation was, or can be, predicated upon a single disability and (1) there exists additional disability or disabilities independently ratable at 60 percent or more, or (2) the veteran is permanently housebound by reason of a service-connected disability or disabilities.

 

Edited August 30, 2017 by broncovet

[john999]

Seej

 

            I would claim SMC-S and quote Bradley v Peake as your reasoning.  I did this some years ago.  I had 70% TDIU and then got 60% for a separate condition.  The VA did not just grant me "S".  I had to claim it.

Same for "K" you must claim it.

                                                                John