SMC?

[Bluntly]

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.

[Buck52]

That's right Vetquest

I missed he was IU  Thanks for the correction.

[vetquest]

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

[broncovet]

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 April 14, 2019 by broncovet

[FormerMember]

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 April 14, 2019 by asknod

[Buck52]

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)

[broncovet]

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 April 14, 2019 by broncovet