TDIU and Other Disability Denied Question (SMC)

[Tex82]

First,

Long time reader and appreciate the site, and not an expert on the majority of this by any means.  Couple of questions.

1.  Found out today that they approved my IU claim, left all of the other disabilities as is and the letter shows the jump in pay and still 80%.  Letter states "total disability is considered permanent.  You are not scheduled for any future examinations."  Assuming this is a good thing, but note 100% sure - don't they normally start out with non permanent first?

2.  Should I continue to appeal lower leg disabilities?  It was a trimalleolar ankle fracture with multiple breaks in the fibula up about half way through the leg.  Pins, plates, the whole nine yards.  Damage to multiple nerves in the foot and leg.  I think the reason they denied the claim was that the C&P doctor stated that he couldn't say anything one way or another "without resulting to mere speculation."  He did not give any medical reason why, he just stated this throughout the entire C&P - did a good exam besides this.  Without going into the whole exam, he basically said I couldn't walking 1ft without pain or sitting down, couldn't balance, change a light bulb, etc.  And that I had an abnormal gait and required a cane to walk.  Now on the kick side, I had a letter from my othropedic surgeon that they did not even look at I'm assuming, no mention of it anywhere in the denial.  It was a good IMO letter to.  My leg is pretty much useless at this point and some people (drs and wife) feel its a loss of use.

3.  VSO asked if I wanted to file for any others benefits (Im assuming SMC) because the wife has been under the Carevigers Stipend (Aid and Attendance or whatever they call it) for several years now at the highest rate. 

Not sure whether to leave all be or keep pursuing anything.  Any help or advice would be greatly appreciated.  Thanks

M.

 

[Buck52]

I am not sure about your question

but I'll try to answer it

If you never recieved an increase on all your claims  and they awarded you the TDIU P&T they base that on your S.C. CONDITION if you have a combined rating at 80% but they felt an increase was not just   and you could not work because of your 80% S.C. Condition  then they Infered the IU.  TO be paid at the 100% and  the no exams scheduled  means your P&T 

..sounds like  good rating to me  but some Veterans prefer to be 100% scheduler.

 

  if you feel your conditions warrant an Increase  then Appeal this decision  and try to get the 100% scheduler W/P&T  it all pays the same  but your actual rating would be 80%  and warranted the IU. because your  S.C. Conditions never warrant a increase...but actually you did get an Increase if you was awarded IU   Getting IU at 80% is an Increase....to be paid at the 100% with all the benefits.

[jfrei]

And as they did with me making me 90% P and T but saying it was IU with no examinations made me frustrated I didn’t appeal I filed an increase due to the time it takes to grant an appeal I wasn’t concerned about gettting retro. It’s when they made me scheduler and then scheduled me for exams is when I appealed my rating should be P and T. Magically going to 90% IU to 100% Scheduler doesn’t mean it’s no longer permanent or in your case beware if your 80% IU in the future turns into 100% scheduler make sure it gets rated as it was when your IU. Not sure how many others have had this happened but I went to the RO with my Spouse and week later had a correction to my SOC with them stated P and T...

Edited December 12, 2018 by jfrei

[Tex82]

I think the reason the VSO wants to appeal the decision on the foot, fibula, and nerves in the leg is that they feel I should be awarded SMC L for loss of use of left leg and SMC L for A&A, then try to go up the SMC ladder.  SMC is a nightmare I particularly don't feel like dealing with, but Im slight ticked they didn't even consider the IMO opinion of my ortho doc  - but it could be worse I guess.

[Buck52]

 You should be entitled to the SMC if your S.C. Conditions warrants the SMC for LOSS OF USE.

  to get SMC if your at 100% P&T  and another seperat S.C. Condition is the Norm , but you don't have to be 100%  you can get SMC if you meet the SMC Criteria, 

  but getting the IU infer will help.

  Normally a 100% veteran that has another S.C. Condition that is separate and distinct & rated 60% or higher will meet the criteria for SMC...S  H.B.

With the special circumstances of having LOSS OF USE  then that will apply to the SMC....They break it all down on the Rating of the SMC Award  the severity of the condition is factor into the entitlement.  

If you meet the SMC Criteria  they use a special SMC Rating table to break it all down  the more severe the S.C. Condition usually means the higher SMC your entitled to.  all of it adds up   & the LOSS OF USE is a certainty for SMC if its S.C. Direct or secondary.

[Berta]

Absolutely  pursue the SMC-as Buck suggested- Lots of SMC info here in our SMC forum-

I agree SMC can be a nightmare to understand- but that nightmare can turn into a p'easant dream, if they award it-

", but Im slight ticked they didn't even consider the IMO opinion of my ortho doc  - but it could be worse I guess."

If that opinion would impact on SMC - the VSO might want to file a CUE on that.ASAP.

Lots of goodies come with P & T , --

"I think the reason the VSO wants to appeal the decision on the foot, fibula, and nerves in the leg is that they feel I should be awarded SMC L for loss of use of left leg and SMC L for A&A, then try to go up the SMC ladder.  "

Did the VARO mention SMC at all in their decision?

SMC is mandated to be inferred whenever the evidence warrants it. I hope the VSO considers they might have made a CUE and tell him that he can file CUE within the Appeal period and get a faster result- as 2 or 3 of our members did here, when I told them how I filed CUE as soon as I got a decision ( whether award or denial)

under violation of 38 CFR 4.6.

You could send him a copy of my post here. I have had 34 years of experience dealing with VA as an advocate, and am a hard core VA claimant myself..

Somewhere here is my article on the Power of 38 CFR 4.6.