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SMC?


Bluntly

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I am currently 80% IU p& t with 2 appeals still currently active. One is at the board and the other one is having a dro review. The one at the board is a TBI appeal and my dro review is a increase for migranes, which is currently 0%. My question is if granted the max for migranes which is 50% will this open me up for any SMC?...

Current ratings are as follows 70% for ptsd, 20% for left shoulder strain, 10% for left ankle sprain and 0% for migranes.

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Maybe, if you meet the criteria for SMC.  We dont know whether you will or not, as we have not reviewed your file.  

If you wind up with a "single" 100 percent rating, and additional disabilities that combine to 60 percent or more SEPERATE AND DISTINCT, then you should get SMC S,

Statuatory housebound.  

However, there are many other paths to SMC, most of which involve "loss of use" of one or more body parts.    We dont know if you have loss of use or not.   Also, dont forget about Aid and Attendance, if others have to help you with activities of daily living, even if those "others" are family members.  

For more details on SMC, ask Mr. Potatoe head:

https://asknod.org/tag/va-smc-mr-potatohead/ 

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I personally never liked DRO Review...I liked to be at a DRO Hearing  so I can talk to them face to face and show them my evidence , and give my intake and ask them politely to read what my Dr OPIN on  ect,,,ect,,  show them my disability's are real up close.

Edited by Buck52 (see edit history)
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If you attain SC for your TBI, the headaches would most like be assigned for the TBI. As such, a 50 % rating for headaches added to the shoulder and ankle ratings would give you the extra 60% needed for SMC S. A 30% rating for headaches would not be enough ( 30+20+10= 50%).

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13 hours ago, asknod said:

If you attain SC for your TBI, the headaches would most like be assigned for the TBI. As such, a 50 % rating for headaches added to the shoulder and ankle ratings would give you the extra 60% needed for SMC S. A 30% rating for headaches would not be enough ( 30+20+10= 50%).

I am sorry but I do not understand this?

if his combined sc ratings are at 80% and two still out for decision ...if he gets 50% for TBI headaches   this is not enough meet the SMC Criteria.

Based off his current 80% rating.

I must be missing some ratings some where?

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You do not have to be 100% disabled to get SMC S if you are IU due to a single disability.  If you getting IU for a single disability and have other disabilities that add up to 60% you also qualify for SMC S.

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That's right Vetquest

I missed he was IU  Thanks for the correction.

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No big deal, you and broncovet have so much information floating around in your heads you might miss something sometimes.

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Correct.  According to Bradley vs Peake, TDIU "counts" for the 100 percent in SMC S.  You still need an additional 60 percent seperate and distinct.  Of course, we dont know how many disabilitie(s) made up the tdiu.  Therefore, we can not speak whether or not this makes you entitled to SMC S.  Alex made an opinion in this regard, however, like Buck, I was unable to follow his opinion.  I think Alex may have information that tdiu is made up of a single disability, not multiple disabilities.  However, this, too is news to me, and I dont have an opinion on whether the OP's tdiu was from a single or multiple disabilities.  

Edited by broncovet (see edit history)
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Bluntly started off the question with:

I am currently 80% IU

Based on this, the PTSD is the TDIU at 70%. The 20% for left shoulder and the 10% for L ankle sprain are "leftovers" for use with a SMC S rating... but only if he wins 50% for the headaches. The 20 and 10% here are not so incredibly disabling as to be combined with the PTSD in order for the rater to be able to call it "extraschedular" to grant IU. A legitimate argument should be filed to pin the IU strictly on the bent brain using Buie if he needs the ratings to get SMC S.

Edit #1. Buie v. Shinseki decision created a paradox. What if you had a tdiu and then got a lot of new ratings. §4.16 gives you the minimum requirements- 60% alone or a 40 or 50 plus whatever to get to 70 or more%. TDIU is then just apportioned to the greater of a 70 or a 60. VA will always try to combine them if possible to make a homogenized (combined) 100%. When you do that you burn up a lot of ratings just getting to the 100% combined and lack enough to attain SMC. Always remember our old friend in 3.103(a)---"(and) it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government."

See also AB v Brown 94(?) (Vet seeks the highest and best award possible and the claim remains in contention until the Veteran is satisfied.) VA is notorious for inserting ''shrinkage" to how they go about this. 

Edited by asknod (see edit history)
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Yes the 50% for  TBI headaches will  meet the SMC Criteria

I was thinking he was just 80%combined rated...IU changes things   as if he is 100%.

I was at 90% combined rating and was given the IU  w P&T 

then had another S.C. Rating for PTSD AT 70% that  made me eligible for the SMC S  AND A 100% Final degree rating.

Thanks to the rater who work my claim   they don't always do this 

If This veteran has some secondary conditions due to the TBI he could even go further up the SMC Latter  (So -to-speak)

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Thanks for chiming in, Alex, clarifying.  Its been discussed that VA some/all the time uses "all" or many of the disabilities to form the tdiu(for purposes of SMC S).   If tdiu is based on the 70 percent PTSD, it sounds like you have it.  

Of course, I have much less experience (none with clients), so I guess that means you opine that "only" the PTSD makes up the TDIU, and I do recall you perhaps saying something about that earlier.  

I simply dont have enough knowledge about the nuances of Bradley Peake to know whether this Vet qualifes for SMC S (statuatory) based strictly upon the disabilities he posted.   

    I dont claim to be an expert in Bradley Peake or any area of Veterans law.  Some times I offer an opinion even tho I know others may be more qualified.  Still, for many Vets even a general answer, is better than no answer, as those more qualified than myself may not have been available to answer.  

    Mostly, I like the Veteran to review his own file, and draw his own conclusions..based on the evidence.  Im hopefull that others, may begin answering more questions, as I expect to have less time in the future answering questions.  There does not seem to be a good substitute for reviewing the file.  I keep seeing more stuff in my file, and have drastically changed my own strategy based on evidence, that I was previously unaware of. 

     The problem, to me, seems to be that "we dont know" what evidence is in the file, until we get a RBA usually AFTER a BVA denial.  Sure, we can order a copy of our cfile, but its almost certainly out of date by the time we get it either on cdrom or paper copy.  More evidence will be added, some will be taken away.  At least if your name is Cushman,  the VA may decide to "modify" your evidence to suit its own needs.   Source: https://caselaw.findlaw.com/us-federal-circuit/1346393.html

     You have the benfit of being able to see the VBMS..and we Vets dont get that on our own claim.  

     I simply offered the "general" rule of 100 percent plus a combined 60 percent seperate and distinct.  As someone pointed out TDIU can suffice for the 100 percent, based on Bradley vs Peake.  

     Vets are no longer allowed to apply for tdiu informally, and must do so on the appropriate form.  It used to be (and maybe still is) that the Veteran was required to list the disability(s) which make up TDIU on that form.  I have no idea which disabilities this Vet checked on the form that made up his tdiu.  I also dont know how the courts view it even if the Veteran checked "all" his disabilities made up his TDIU.  

    I appreciate your input on this Alex.  

Edited by broncovet (see edit history)
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I just cant thank u fellas enough on the wealth of knowledge u added to this post appreciate the insight. I will keep you guys updated on my process, and yes my IU is based solely from my ptsd.  

Edited by Bluntly (see edit history)
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Update....Had my C&p exam on the 17th and it turned out to be a neurology exam. This was the same Dr. that did my TBI exam and this time asking specific questions pertaining to my headaches. Just thought this was usual because when i had my migraine exam in 2018, I didnt go see that same Dr. and same location. Hopefully everything works out in my favor and you hadit members continue to prosper. Just wish i didnt try to read into much of the VA process as much but sure will keep you men and women updated on my results.

Edited by Bluntly (see edit history)
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Back in July, I had a Vet go in for an increase on his 50% PTSD. This has been a long fight from 2017 to now from 70% all the way to IU in a sheltered work environment and now for SMC S. VA has fought me like a rabid dog at each turn.

The doorgunner jumped out of his Huey gunship at An Khe in 69 to run across the PSP for a smoke while they did a hot refuel. He got t-boned by a M 151 jeep going 35 MPH. He woke up at Camp Zama about a week later. He got out of Beaumant in Texas about a year later and signed up for a new tour in... Vietnam. Three choppers shot out from underneath him in three years In 2016, he'd fought for his TBI up to  70% but VA wasn't buying any more things like Tinnitus or headaches. After the exam (this time by a shrink (not a neurologist), Dr. Judas declared  he could not distinguish the boundary where his TBI symptoms were also being  compensated  for by his then current PTSD at 50%. VA pulled a fast one. They wrapped both the TBI and the PTSD symptoms all together and called it TBI. Whoosh! There went a 50% bent brain rating up in smoke. I guess I don't need to tell you folks but that's against the law at all 57 Fort Fumbles across our fruited plains absent a heapin' helpin' of §3.344 due process. They could have called CUE on themselves- but they didn't. I carefully reread the QTC shrink's note and it said the agoraphobia was the only mutually overlapping symptom. Now I'm sitting on the Group W bench at 1425 I street waiting for a face-to-face hearing date.

VA has been told to tighten up the budget to make room for our new 88,000 Blue Water 12-Miler Club alumni. Expect to see a lot of this: "Oh, my. It would be pure speculation on my part as the VA Examiner to say which is which. Giving the Veteran the benefit of the doubt, VA is not going to  reduce your rating. We'll just combine a few under §4.124a  DC 8045 with a few of the ones from §4.130 DC 9411, rename it 70% as residuals of TBI and call it good."  Bye Bye, PTSD and SMC S  and a whole lot more later when you need it for a SMC P combo. Expect to see a lot more of this.

I like to remind you Hadit folks. When some Asst. Veterans Service Center  REMF calls me up and gets all cuddly with me and says 'we just want what's best for your client', right off I put my wallet in my front pocket...deep, hang some trip flares from the concertina, cock the Pig, get on the horn and scream 'DEFCON I' RFN. If you dawdle 30 days or more without pitching a b****h, VA considers that implied agreement with their actions. 

To avoid the due process problem, they'll throw in an increase for something else from 10% to 30% so it doesn't hit the trip wire provoking a §3.344 action notification. Sound complicated? It is. This is far more than a lot of you folks are taught. Read your decisions word by word. That's where I find their errors. Often, it's what isn't discussed than what is. It's been called implicit denial. It's invisible. You can't see it. Welcome to the VA poker game.  

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Implicit, aka, deemed denials, are "one big travesty of justice" the VA gets away with the courts blessing.  38 CFR 3.103, which specifically prohibits deemed denials, has been disregarded by the Court.  I am not sure how or if this can ever be fixed but I sure would like to see Mr. Carpenter, or Mr. Rozinski, or Mr. Chisholm take that one up to the Federal Circuit, or even higher.  Deem denials are not rocket science, and 3.103 is unambigious:

Do any of the laypeople here, think this regulation supports a deemed denial:  (A deemed denial is when Va adjuticates "issue A" but does not address "issue B".  This means the VA gives the Veteran "the benefit of the doubt" and that issue b is awarded, right?  Wrong.  Its denied.  The government is given the BOD).  

 
Quote

 

3.103 Procedural due process and other rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. 

 

 

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Just got off the phone with Peggy and my DRO Review for migraines is "Pending Final Review" is what she said and it is good news. She then asked to verify my address, so i guess the wait is almost over.

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