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]

Thanks, asknod, but I think maybe I wasn't clear or I'm misunderstanding something.  My combined rating was already 70%, one of which was 50%, one 20%, and 3 10%s.  The BVA just awarded me TDIU and SMC (s) back to 2009.  They also granted several more conditions that I had claimed, mostly secondary to my back.  Now I will almost undoubtedly get additional ratings of a 60%, another 50%, a 30%, a 20%, and probably some more 10%s.   Applying standard VA math, it would all amount to over 95%, which would normally make me 100% schedular, (or so I thought).

I currently don't have any disability that deserves an individual 100% schedular rating , and I hope none progress to that point;  but, unless I've been completely misinformed, when one accumulates a 100% rating that isn't TDIU, isn't it then referred to as 100% 'schedular'?  

What is interesting is that I got the TDIU based on my thoracolumbar back, which had been 40% forever, but just last year was reduced from 40% to 20% after major reconstructive surgery (which I had also planned to appeal, but now won't bother);  the SMC was based on all of the other stuff.  

I'm not entitled to any other level of SMC, and I know that.  It was quite a surprise to me that they granted TDIU in such a way as to grant me SMC (s), but the VLJ made it clear that my unemployability was, and still is (even after surgery and consideration of the reduced rating) a result of my spinal injuries, so everything else was lumped together to get me to SMC.

My thought process was that reaching 95%+ would erase the TDIU and the SMC, but it has been explained to me that it won't happen.

It has been a long, hard, nerve-wracking war with the VA, I'm so relieved that it's coming to an end.  After being shot down by C&P examiners and VSRs and DROs, I feel exonerated now that a VLJ  (and at least one of his attorneys) considered all of my evidence and all of the medical opinions to be the only "probative evidence" submitted.

[Buck52]

Let me tell you what happen to me  I don't understand these SMC Regulation/Criteria either.

I was 90%combined rating  and given the TDIU P&T My disability will not improve in my life time  no exams scheduled...ok later on years later I filed a PTSD Claim and was Awarded 70& for chronic PTSD..

I was just expecting an increase in my rating and monthly payment.

They (Rater) gave me a Mandatory SMC S  H.B. rating and made my rating a final 100%degree rating with SMC S Also SMC K for ED But at a 0%rating on the ED ,but paid in addition to my  other ratings and service connected  the all above.

They have a special SMC Rating table they use when the Veteran has other condition filed for service connection and the severity of those conditions.

if granted  the rater as the duty to check each condition and the severity as to infer the Appropriate SMC Award.

some Raters don't bother to do this and cause the Veteran to have to Appeal. this is one reason why its critical that the Veteran or his Rep read the rating criteria  or What We Decided '' very very closely. in an Award letter.

[broncovet]

Acesup:  If you have been awarded benefits, and VA reduces your compensation, they must go through the "reduction" process or it will be void ab initio.  VA regs are clear on that.  

Here is part of the hoops VA must jump through to reduce you (not all of it, by any means):

 

Quote

 

§ 3.344 Stabilization of disability evaluations.

(a)Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b)Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c)Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

[ 26 FR 1586, Feb. 24, 1961; 58 FR 53660, Oct. 18, 1993]

 

 

[Gastone]

Ace, your 50% for the IU, was rated upon the allowed the 3 10s and the 20sc were not included in the Reasons SC for the IU. In order for IU rating can only have (1) SC, not a couple listed as a couple extra SC's. Following the 50% for IU is now considered for the basis SC's now conclude for the SMC S (60%).

So if a Rater allowing you a CSC of multiple SC that now rates as 95 CSC to 100% would cause you to lose the IU SMC S has to maintain by the Rater for you losing the SMC S 60%. As NOD discusses the Higher SMC L has nothing of your Need for 1 SC at 100 and qualifying for SC S.

How about the IU Award indicated in exactly SC qualified the IU and those 60% SC that contributed the SMC S under the IU?

 

When my PTSD 70, CAD 30, and SA 50 were listed by my SC's  in 2011 and listed on the IU, eliminating the SMC S, my bad.  When I did the 100% for SA bump Award to 100 CSC by itself, then cause the CSC (1) SA 100% and the PTSD 70, CAD 30% did the (60% needed for the SMC S Award.) The 4 Years of IU becaming moot and returned from all info pasting with New Awards 11/2016 early eed of 2012.

[acesup]

8. Entitlement to a TDIU is granted
...
,,
The evidence of record supports a TDIU. Specifically, the May 2017 
examiner indicated the Veteran's ability to work would be impacted by his back
disability ....

 Based on the totality of the evidence, the Board finds that the Veteran'is unable to secure or maintain a
substantially gainful occupation due to his service-connected chronic lumbar strain
with degenerative disc disease. Thus, affording the Veteran the benefit of the
doubt, a TDIU is granted

9. Entitlement to SMC is granted :
VA has a' well-established" duty to maximize a claimant's benefits. See Buie v.
Shinseki,24Yet. App. 242,250 (2011). 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. $ 1 I 14. See Bradley
Although the Veteran's back disability is not evaluated at 100 percent, for SMC
purposes the above award of a TDIU based on his back disability satisfies the
requirement of a "service-connected disability rated as total." Sbe Buie,24Yet.
App.25l; Bradley,22Yet. App. at 293.  Thus, because the Veteran has a single
service-connected disability rated as total (back disability),and additional service connected
disabilities independently rated at 60 percent (depression, etc ), the criteria
for SMC  under 38 U.S.C. $ 1114 (s) (1) are met (in addition to the period for which
he was assigned SMC from June 1,20t6,to October 1, 2016).

 

Edited August 28, 2018 by acesup
typos