SMC S and Bradley vs Peake

[broncovet]

Some of you had questions on Bradley vs Peake and its affect on SMC S.  

Here is VA's Fast letter, 09-33

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. 

 

[Dustoff1970]

I recently received SMC-S back dated to 2017 based upon Bradley v. Peak and other friendly favorable U.S. CAVC court decisions.  The BVA granted me my first of two successful appeals and gave me 50% for OSA Sleep Apnea due to Nam PTSD (secondary to ptsd and VA ptsd medications for long period of time).

I was rated at 70% PTSD P&T TDIU with 30% heart disease and the additional 50% for OSA put me over the minimum 60% threshold to automatically receive SMC-S.

The P&T TDIU rating counted as 100% rating for purpose of SMC qualification.

Additionally I have recently received increase to 60% for Nam AO heart disease thanks to 2nd BVA appeal and also VARO award of 60% for GERD, 10% for Tinnitus and 0% for AO Hypertension.  

You can like me qualify with additional combined disability ratings added up to 60% or more OR one singular only disability of at least 60%.  All ratings must be for distinct disabilities of different body parts including MH as different from leg injury or GERD.

My comment is not legal advice as I am not a lawyer, paralegal or VSO

 

[Vync]

Don't forget about how the Cantrell v. Shulkin (2017) decision changed Bradley v. Peake. Cantrell requested a TDIU rating, but was denied because he worked full-time as a park ranger. He appealed and won because he was found to be employed in a "protected environment" and the VA had not defined how it applied to TDIU.

Quote

https://abkveteranslaw.com/blog/tag/Cantrell+v.+Shulkin

HELD: VA HAS NOT DEFINED “EMPLOYMENT IN A PROTECTED ENVIRONMENT” FOR PURPOSES OF ENTITLEMENT TO TDIU, BUT FACTORS TO CONSIDER INCLUDE “THE MAGNITUDE OF A VETERAN’S JOB RESPONSIBILITIES AND THE DEGREE OF ACCOMMODATION NECESSARY FOR SUCCESSFUL, FULL-TIME WORK.” VA ADJUDICATORS MUST CONSIDER THE COMBINED IMPACT OF A VETERAN’S MULTIPLE SERVICE-CONNECTED DISABILITIES IN DETERMINING WHETHER REFERRAL FOR EXTRASCHEDULAR CONSIDERATION IS WARRANTED.

I explored similar application to P&T after a heart attack in 2019, but it looks like the focus of both decisions target only TDIU vets.

For example, a single 100% rating is granted for 3 months after a heart attack. That single 100% plus separate/unrelated disabilities of 60% or more grants SMC-S only if the vet is not able to work due to SC disabilities. However, 3 months later the 100% gets re-evaluated. If the 100% gets reduced, SMC-S goes away even if the vet returns to work in a protected environment.

For SMC-S, P&T vets are not afforded the term "permanent and total" counting as a "total disability" like TDIU does. Additionally, P&T vets cannot rely on multiple combined ratings which total 100% due to specific language in Bradley v. Peake. Even if a P&T vet is able to continue working in a protected environment due to accommodations, SMC-S would still not apply unless they get that somehow get back that single 100% rating.

It is just like the S-DVI waiver where the VA changes the definition of "total disability" to suit its needs to deny benefits and apply it in favor the veteran.

[john999]

Broncovet

 

                       You know I won SMC  S based on the Bradley decision and I did not even know all the facts you point out in your post.  I had a single disability of 70% for which I got TDIU and then I got over 60% for 6 other disabilities.  Must you have a single disability of at least 60% above and beyond your TDIU to get "S"?  I had a single disability of 60% but five more of 10% each.  My claim to "S" was treated as a CUE by the VA.

[Dot09]

This is an old post but I would like to answer your question John. From my understanding from my attorney the 60 percent can be from a singular or combination of separate and distinct disabilities. Meaning if you had 30% , 20%, 10% , 10% , 10% then that would equal and grant your needed 60% for SMC s. I hope this helps others.

[broncovet]

Correct, Dot.  The criteria for SMC S (statuatory, there is also a housebound in fact) is "a single" 100 percent rating, plus a comined additional 60 percent seperate and distinct.  And, Bradley vs Peake shows that "tdiu counts" for the single 100 percent rating.  

BUT....you can not use a disabilty twice.  "If" your tdiu rating considered, say, a 50 percent for PTSD, you can not again use the 50 percent for PTSD to count toward the "additional 60 percent combined" portion.  

You need to review the decision to see "which" disabilitie(s) the VA counted toward tdiu.  Sometimes this information is not that easy to find.  

The VA takes "pyramiding" very seriously, and does not permit any symptom from being used twice.  There is legal precedence for this, but Im not going to cite that now.