Currently TDIU & SMC (s)... If Increased to 100% Schedular, Do I Lose SMC (s)?

[acesup]

I asked this on another vets forum, still haven't got it hashed out yet.

I just won my BVA appeal last week.  VLJ granted TDIU back to 2009 for my back, and granted SMC(s) for other conditions (also retro to 2009, as with all of the granted issues).  Here's where it gets sticky to me:

The SMC is based on having one disability that is rated 100%, in my case it is the TDIU for the back.  I qualify for the SMC because in addition to the back, I have 50% depression + 10% +10% radiculopathies + 10% residuals of Hepatitis.

The other issues he granted, though, are going to have big percentages with them; DVT/PE with anticoagulant therapy should be 60%, OSA with Bi-PAP should be 50%, convulsive tic should be 30%, neck is probably 20%, and there will probably be a few more 10% nerve damage ratings.  If everything is added together, I'm pretty sure it will be over 95%, therefore, rounded up to 100% Schedular disability.

My question, then, is this:  Will they leave me on TDIU plus SMC (s) as the Judge ordered, or will they assign 100% Schedular and wipe out the SMC?

Something that may or may not come into play, I'll quote from the BVA Decision Letter:

      "VA has a "well-established" duty to maximize a claimant's benefits. See Buie v.
Shinseki,24 Yet. App. 212,250 (201 1). This duty to maximize benefits requires
VA to assess all of a claimant's disabilities to determine whether any combination
of disabilities establishes entitlement to SMC under 38 U.S.C. $ 1114. See Bradley
v. Peake, 22 Vet. App. 280, 294 (2008). "                                                 

Edited August 18, 2018 by acesup
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[acesup]

P.S.  Just got an answer on the other board from a retired rater who says the SMC will not be taken away.  He quoted that "Bradley v. Peake" decision.That's awesome!

[broncovet]

They would have to have a compelling reason to reduce you, and awarding you an increase is not a compelling reason.  

[Buck52]

I don't think they will take away your SMC

 In other words, veterans may qualify for 160 percent or what some refer to as the “housebound rate”. In Bradley v. Peake, 22 Vet. ... CAVC first pointed out Congress could have excluded TDIU from consideration for section 1114(s) special monthly compensation, but it did not.

IF They did they wound have to reduce your IU.

as broncovet mention

They would have to have a compelling reason to reduce you, and awarding you an increase is not a compelling reason

[jfrei]

I was on the same boat I was TDIU and SMC S and it was explained to me that you keep SMC S he explained it as asuch the va grants you a higher rating the raters look to see what your making and give more if it’s warranted or keep it the same just as long as it’s not less. Which I think was the BS they told me so they didn’t have to separate my PTSD and my TBI...

[Gastone]

If you have an establish IU with SMC S Award, the New SCS multi SC 100% will not be placed in place as Moot for IU. The IU is the best for SMC S and is determined by the Rater.

[FormerMember]

On 8/17/2018 at 8:55 PM, acesup said:

  If everything is added together, I'm pretty sure it will be over 95%, therefore, rounded up to 100% Schedular disability.

Here's your error. Simply adding up a bunch of ratings for disparate illnesses which are unrelated does not a 100% schedular rating make. A 100% schedular rating is just that- the highest rating attainable for that disease or injury. In the case of Hepatitis C under DC 7354, a rating of 100% is available. In the case of a DDD for a bad back, there is no 100% schedular available-just a maximum of 60%. Adding up a lot of ratings this way creates a combined rating of 100% which is a horse of an entirely different color. In any case, it's immaterial. The only way a 100% schedular rating would benefit you would be if you were rated for SMC at the L rate for a disability like A&A or loss of use of your lower extremities. In that case, a 100% schedular for, say, PTSD, would advance you to the next higher rate- or SMC M. If you had a TDIU for PTSD at 70%, you could not substitute it in the place of a 100% schedular to advance to M-but rather SMC L 1/2. See §3.350(f)(3)(4). You almost need a PhD in VA law to figure out SMC. I even have VA attorneys email me and ask me to sort out a fustercluck of disabilities to figure out if they can get a higher SMC.