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What does this mean?

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Richard1954

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(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....?

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5 minutes ago, broncovet said:

The VEteran looses any tie.

actually that is not the reality of the situation nor is it what the outcome of the Chevron Defense is. 

The Chevron Defense allows an agency to be given deference in how the rules it makes are interpreted. It does not stop a court from saying that in any specific case the agency misapplied the rules.

The Benefit of the Doubt doctrine is outlined in 38 USC 5107(b) and 38 CFR 3.102.

Neither of which say the what the veteran claims is always right. Despite your poor attempt to twist things, denying BOD is not an effect of the Chevron Defense it is an effect of the law itself.

If the veteran demonstrates that under either of those the evidence is in their favor or at least equal to the opposing evidence the determination is made in the veterans favor.

 

 

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9 minutes ago, asknod said:

VA is increasingly trying to do the "combined" technique of using everything you have to get to 100%.

glad you weighed in here.

So in a hypothetical situation,  If Veteran applied for an increase/TDIU and went all the way to the BVA and had it remanded, and then the VA just mooted the TDIU claim by making them 100%, should that veteran request / or get retro pay all the way back to the date they filed the claim?

In general it seems that would make sense, but I doubt the VA will automatically view it that way and would force the veteran to argue for that retro pay.

any thoughts?

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Ok.. so now I am more bewildered than ever...  I asked a simple question at least I thought it was simple... and I am not sure that I actually got a answer that I could understand..

Let me elaborate on why I asked the question...

In 1999, I was awarded TDIU based on one medical issue that was rated 60%.

In 2007, I was awarded `100% for a different condition,  in addition I was awarded A&A ( which is always based on need) at the L rate, but because I also had a separate rating at 50% or more I was awarded the next step L 1/2

I was looking for a way to get the next step of SMC which is M.  My TDIU rating was never revoked,  and I have other ratings that combine to 100% . The rule states that it must be a separate rating of 100% to get to the next step...... TDIU cannot be used to get to the next step..... 

So I am right back were I started from.. wondering how to get to that next step....

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3 minutes ago, Richard1954 said:

TDIU cannot be used to get to the next step

I think your path to (m), if it currently exists, is in the way your SC conditions are connected or not connected.

38 CFR 3.350(f)(3) and (f)(4) BOTH  have the same restriction as shown in the bolded areas below.

I am sure you know how they are connected or not, but look at the Ebenefits Disability link and see which if any of the included rated items are secondary to each other.

Are the body systems the same? in other words are the conditions that got you to (l) different than the additional 50 and 100% ratings? If not is it likely a higher level review could re-order your conditions giving you the bump to (m)? The VA has an obligation to maximize your award, so if it is just a paperwork shuffle that should be an easy win...at least as easy as any argument with the VA is.

I will throw out a wild example. Say you lost one leg, the other foot, and had kidney problems and that got you to SMC(l 1/2)+A&A, then say you had an additional 50, 70 or 100% for PTSD. That would bump you to SMC(m) because the PTSD is not in either of the other body systems.

TDIU won't come into play for what your goal is. You need individually rated conditions of distinct body systems that are independent of the other ratings. Since I cannot see how your rated conditions are connected (unless you screen cap the disability link on ebennies) it is hard to tell why they did not moot your TDIU, but on a guess it was because if they switched you to Statutory 100% it would reduce your SMC award.

was the 1999 60% every increased?

Was the 2007 100% a single condition in a completely different body system?

are the "other ratings that combine to 100%" distinct from either the 60 or 100?

is the "separate 50%" you mention the same 60% rating that got you TDIU?

as I said I think any path you currently have to (m) is through how your ratings are interconnected or not.

 

----------38 CFR 3.350(f) sections (3) & (4).---------------------

(3)Additional independent 50 percent disabilities. 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 or combinations of permanent disabilities independently ratable at 50 percent or more will afford entitlement to the next higher intermediate rate or if already entitled to an intermediate rate to the next higher statutory rate under 38 U.S.C. 1114, but not above the (o) rate. In the application of this subparagraph the disability or disabilities independently ratable at 50 percent or more 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. The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized.

(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.

(i) Where the multiple loss or loss of use entitlement to a statutory or intermediate rate between 38 U.S.C. 1114 (l) and (o) is caused by the same etiological disease or injury, that disease or injury may not serve as the basis for the independent 50 percent or 100 percent unless it is so rated without regard to the loss or loss of use.

(ii) The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized.

 

 

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17 minutes ago, GeekySquid said:

was the 1999 60% every increased?

No - remains the same

18 minutes ago, GeekySquid said:

Was the 2007 100% a single condition in a completely different body system?

yes 

 

18 minutes ago, GeekySquid said:

are the "other ratings that combine to 100%" distinct from either the 60 or 100

yes

 

20 minutes ago, GeekySquid said:

is the "separate 50%" you mention the same 60% rating that got you TDIU?

Yes 

Ok... so I know that I do not have the ratings to meet the requirement for the Level M.....

I had been mislead by someone who will remain nameless - who stated the TDIU could count as the 1st 100% and then 2nd 100% would get me to M..

But that person did not take into consideration that TDIU is only good for a Housebound rating .. not  A&A and certainly not to get to M

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2 minutes ago, Richard1954 said:

count as the 1st 100% and then 2nd 100% would get me to M..

If you have 1 100% Schedular for a single condition. Another 100% for a combined Schedular. A single 60% (that is not part of the combined 100%) and all three are distinct ratings from different body systems, there is a potential path in there but i cannot be sure.

4 minutes ago, Richard1954 said:

TDIU is only good for a Housebound rating .. not  A&A and certainly not to get to M

yeah this stuff gets so convoluted it is easy to lose the thread, particularly without seeing the full documents and that graphic from Ebenefits.

TDIU is so much more commonly discussed here than SMC(m) that it is easy to understand potential confusion. If you are used to thinking of 1114 then you might not think about the impact of 38 CFR 3.350 (f)(3) or (f)(4)

It would be nice if the VA and or our VSO's were actually experts and honest about these things. As it stands we have to figure it out on our own a lot of the time and of course we are not experts either.

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