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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Bluntly

SMC?

Question

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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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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Posted (edited)

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

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Posted (edited)

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

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