What does this mean?

[Richard1954]

(Authority: 38 U.S.C. 1114(p))

 

(4) Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if already entitled to an intermediate rate to the next higher intermediate rate, but in no event higher than the rate for (o). In the application of this subparagraph the single permanent disability independently ratable at 100 percent must be separate and distinct and involve different anatomical segments or bodily systems from the conditions establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate rate provisions outlined above.

 

Does the Bold print above  mean that a TDIU will not be used for purposes of a step increase for L ratings Aid and Attendance

I know that Bradley v Peak determined that a TDIU and additonal 60% rating is allowable for SMC S Housebound 

But it appears to me that TDIU cannot be used in SMC L for step increase to M   am I correct in this....?

[GeekySquid]

19 hours ago, Richard1954 said:

Does the Bold print above  mean that a TDIU will not be used for purposes of a step increase for L ratings Aid and Attendance

@Richard1954

This link is to the MR-21 and the specific topic you are looking for. There is more there than what I copied in here. The line I bolded suggests that a TDIU award of 100% is not to be used as the basis for an A&A award.

That said, A&A does not always require a 100% rating. Also A&A is triggered by may different laws and regulations, so it is very case dependent.

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014571/M21-1,-Part-IV,-Subpart-ii,-Chapter-2,-Section-H---Special-Monthly-Compensation-(SMC)#1

IV.ii.2.H.8.b.  Considering the Level of Disability Required for Entitlement to A&A

A single disability evaluated as 100-percent disabling under a schedular evaluation is generally a prerequisite for entitlement to A&A.  Any lesser disability would be incompatible with the requirements of 38 CFR 3.352(a).

Explanation:  Both the nature of the impairment (being in need of regular A&A) and the compensation indicate that a greater level of disability is required for entitlement to the additional allowance for A&A than for entitlement to SMC at the housebound rate, or a 100-percent schedular evaluation.

Important: 

The single disability rated as totally disabling must be the sole or partial cause of the need for A&A.

38 CFR 4.16 applies only to IU determinations.  It does not permit decision makers to apply 38 CFR 4.16 guidelines on what constitutes a single disability to A&A determinations.

Temporary 100-percent evaluations under 38 CFR 4.28, 4.29, and 4.30 qualify for the single schedular evaluation needed for entitlement to A&A.  However, grants of entitlement to A&A are not routine in these circumstances.

To establish entitlement to SMC (t), the need for A&A must be due to traumatic brain injury (TBI) or multiple disabilities due to TBI that combine to a 100-percent evaluation.

[FormerMember]

 Independently rateable at 100% means schedular. VA will not permit a finding of TDIU to stand in place of 100% under  §3.350(f)(4)  or, in M-21 VAspeak,  IV.ii.2.H.6.c.  The regulation is poorly worded. If you received another single rating for a disability above 60%, or amassed several with one 40% or more that added up to 70% or more, when you were already at SMC L, it could never be considered as an extraschedular TDIU. By law, you would have to already be at 100% (or TDIU) to approach qualification for SMC L. 

 I have appeals I'm building for the CAVC to fight the M 21 application of forbidding application of the (f)(3) and (f)(4) regulations (or both) more than once. The regulation doesn't state that. And... I can also do an aggregate filing (class action). Cool beans. 

 

 

 

 

Edited July 7, 2019 by asknod

[Buck52]

I never really understood this?   if a veteran is using the extra scheduler to get TDIU and later has combined ratings that add up to 100%scheduler  looks like TDIU would be moot, but a 90%rated veteran that they gave the extra scheduler to  to reach the payment of 100%  and has another seperate service connected condition that adds up to 60% or higher  then  this  basicly only entitles him to the SMC S..as this is what they did for me.

so actually I have a 90% rating and 10%rating  and combined they say I am 90%  but since I could no longer do the work I was trained to do  they put me on TDIU P&T...After about 12/13 years later I filed for another separate and distinct claim and was rated 70%   this did not make my TDIU P&T Moot  but got me on up there in the SMC S.

so my TDIU is not Moot  and I am still concidered to be TDIU even with the extra service connected condition at 70%.

 

I still can't work or do any other type of work to bring in extra income,,this is not fair to the Veterans that are rated like this    as opposed  to a  scheduler 100% veteran that can work and make more $$$ 

to me a 90% or 100% veteran is pretty bad off and can't work  and why they do it this way I just don't understand it.??

so no two ways about it  if a Veteran can get the 100% scheduler  he/she is better off.  jmo

[GeekySquid]

1 hour ago, Buck52 said:

so my TDIU is not Moot  and I am still concidered to be TDIU even with the extra service connected condition at 70%.

that is the way the law is written. Remember the VA has to maximize your compensation.

In in your case if they mooted TDIU then you could not get the SMC. By keeping you TDIU you get that extra monthly income.

That said I do agree that for some veterans it would be better if they became 100% schedular. unfortunately in your case it seems the timing of things played against you. I don't know that you would have gone back to work, but IMO it would be nice for you to have the option on how much you can earn based on your own strengths and how you feel that day/week/month.

[broncovet]

This seems like a great example of why Chevron Deference allows VA to interpret 

"benefit of the doubt" in ambigous regulations to mean: 

The VEteran looses any tie.  

As Alex pointed out the regulation is ambigious, so the VA vigorously defends their interpretation to mean "the lowest possible" benefit accrues to the Veteran when there is doubt.  

[FormerMember]

Being in Buck's position is to be given the benefit of SMC S. VA is increasingly trying to do the "combined" technique of using everything you have to get to 100%.