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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Most Common VA Disabilities Claimed for Compensation:   

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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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Nvet

SMCs for TDIU rating 3 yrs ago

Question

Hello,

I received a TDIU rating for Depression in 2015. In addition, I had 40% for my back, 30% Migraines, and 10% allergies. I was not considered for SMCs. Any advice on how to proceed to get SMCs and back pay? Thanks

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In the brave new AMA world of appeals modernization, a 70% rating should  engender  a Rice v Shinseki inferred claim for TDIU. VA will always fight and say you didn't file the 8940 which would have alerted them to your desire. Some day, that will be revisited like Procopio. 

But, I'm hearing, VA is preparing to do away with the 8940 and making you file it on a 526 EZ now. No confirmations on that scenario yet but I can see it coming. We've come a long way from having a "well-grounded claim" (pre-2001 VCAA) and the present system. Look at inferred and implied claims law now. Cogburn set forth 4 tests for this which are still on point.

https://www.courtlistener.com/opinion/817334/cogburn-v-shinseki/

https://www.leagle.com/decision/infco20160107129

VA went to great lengths to eradicate implied and informal claims such as you telling your VA doctor you wanted to file for bent brain during an office visit. VHA had  a duty to report that  to the VBA. They rarely did. VA just revamped §3.159 to ensure that hole got plugged. §3.155 similarly was revamped to insist we use standard forms. I once filed an appeal while I was in the hospital for a year on a paper towel (2010). They would never accept it now. 

The best general rule is if you build it, they will decide it. Absent a claim being filed, VA is not required to organize a safari to scour every square inch of your c-file to ascertain if you are entitled to something they forgot to infer. Chinese Dry Cleaners rules apply here-No tickee-No laundry. On the obverse, a claim remains pending-even for decades- until there is unequivocal proof of its having been adjudicated. (Adams v Shinseki).

Know the law. Use it to your advantage. VA doesn't know the law and makes it up as they go. If you don't object, then they were right...

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Most of my post for IU and SMC S

I am assuming the Veterans 60%  70% 80% OR 90%  and was awarded the IU under the extra scheduler rating system that the Veteran has severe  Conditions that was caused from military service and the Veteran should have been rated the 100% in the first place and was short sheeted (lowballed) with his rating  and they throw the IU at them say 70% rate because  he could not work (any work)due to his S.C. Condition.

Once a Veteran gets IU  or TDIU  its all the same  once rated for IU ,  if this Veteran comes up with another  Separate and distinct S.C. Condition that is rated say 60% or higher   that's suppose to qualify him/her for the SMC And the rater is suppose to infer the Correct SMC...Lots of times they don't and the ordinary Vet don't know.

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Maybe this will help someone- and is why I wrote a CUE in March for a member but forget who-

 

In part:

"In this case, the Board notes that as a result of this decision, a TDIU due to service-connected anxiety disorder has been granted for the entire rating period on appeal (from February 6, 2009). Thus, for SMC purposes, this disability satisfies the requirement of a "service-connected disability rated as total." See Buie at 251; see also Bradley at 293. Because the Veteran has a single service-connected disability rated as total (his TDIU due solely to service-connected anxiety disorder), and has an additional service-connected disabilities (hearing loss, vertigo, and tinnitus) that are independently rated at at least 60 percent, the criteria for SMC at the housebound rate have been met for the entire rating period on appeal. Thus, in light of the Court's decisions in Bradley and in Buie, entitlement to SMC at the housebound rate under 38 U.S.C.A. ง 1114(s) is granted effective February 6, 2009."

and

"However, in Bradley, 22 Vet. App. 280, the Court held that the issue of entitlement to TDIU may not be moot based on the assignment of a total schedular rating under certain circumstances, in particular where SMC could be awarded based on the consideration of a TDIU rating under 38 U.S.C.A. ง 1114(s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC. As will be explained below, the circumstances of this case are like those in Bradley, and the Board has thus considered and granted TDIU for the entire rating period on appeal."

https://www.va.gov/vetapp17/files1/1701510.txt

Also this is explained in the 2019 VBM on page 415, under 5.7.1.9

 

The above decisions also states:

"ORDER A 70 percent disability rating for service-connected anxiety disorder, but no higher, is granted for the entire initial rating period on appeal.

A disability rating in excess of 30 percent for bilateral hearing loss is denied for the period prior to May 19, 2015.

A disability rating in excess of 80 percent for bilateral hearing loss is denied for the period from May 19, 2015.

A 30 percent disability rating for labyrinthine vertigo is granted for the entire rating period on appeal.

A total rating based on individual unemployability due to service-connected disabilities (TDIU) based on the 70 percent rating for anxiety disorder is granted for the entire rating period on appeal. Special monthly compensation under the provisions of 38 U.S.C.A. ง 1114(s) is granted for the entire rating period on appeal."

The 70% SC anxiety predicated the TDIU award. His additional disabilities granted the SMC S.

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Posted (edited)

Well, unless I can read that VA narrative as to why a Vet got TDIU and what VA based it on, I assume nothing. As I like to point out, every Veteran's claim or appeal is exquisitely unique to his circumstances and his MOS. I have many who show me the eBennies printout of their disabilities but it doesn't do more than explain what you have-not how it is combined to reach the TDIU.

I've had VA raters use every ailment down to missing a testes(it got shot off near Cu Chi in 67)   for a Vet's SMC L under aid and attendance. I tried to get the half step "bump" under §3.350(f)(3)(4) IHD due to AO and they said no- it was not separate and distinct from PTSD!. We won on appeal. I know, it's only a difference of $2,400.00 a year (SMC L 1/2) but for some of us, that's still not chump change. 

P.S. to Berta's reply above. We were typing at the same time. Buie/Bradley law is on point but you cannot reach that argument until you appeal. VARO raters will not honor it nor will the SMC "calculator" permit it. Some enlightened VAROs will concede CUE, but only rarely. If you got your denial after 2/19/19, I'd avoid the HLR lane and file a VAF 10182 NOD to the BVA directly. Argue the SMC there to knowledgeable  staff attorneys. 

Edited by asknod

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One more to make the point:

In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C. § 1114 (s).

https://www.va.gov/vetapp18/files4/1823751.txt

Alex I have a photo of my daughter coming out of the Cu Chi tunnels a few years ago  She said they were really more sophisticated than most would  think...a big tourist attraction in Vietnam.

I think this was the point I made for another vet here with a CUE I prepared for him-

But you always make good points- sometimes we are completely in the dark unless we can read the decisions here. I agree Ebenefits  is like Beauty -it is only in the eye of the beholder.

 

I had a nice talk with a ebenefits person today because I have an account and need to get back it back .I was stopped from using it because I only used it maybe once every two months and my password expired.

The guy mentioned VA.gov , asked if I tried that but I haven't, but said he cant help anyone there at VA.gov the way it is set up, but anyone having ebenefits problems can get him via the 800#.

He verified my account is still there and all I have to do is give them a new password.

Still ebenefits is limited and very hard to really comprehend sometimes.

 

 

 

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