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....?

[Buck52]

Just reading Richard1954 post  he has another rating of 100% other than his IU Rating this is a different  and complete ''body system''  meaning a complete separate rated conditions  and the IU Should be moot  because they are not combine to be 100% , his separate and distinct condition is rated at 100%  so IU SHOULD BE MOOT AND THE OTHER 100% CONDITION LOOK AT AS THE 100% SCHEDULER Rating  WITH THIS RATING HE SHOULD  MEET THE PROPER SMC CRITERIA.

I know in my case the IU CAN'T BE MOOT because it was my original ratings and combined ratings  to get to the IU,  so when I filed for another separate and distinct S.C. Condition,  Years Later that made my ratings have a different ''body system'' (as for as rated and service connected conditions )  however the kicker here for me was I was only rated at 70% (chronic combat PTSD)  although with this type of rating the rater had no other choice than to award the SMS S H.B. because of the statutory rating under the SMC Special rating table.

I was awarded the SMC S because of the  separate & distinct 70% PTSD Award. (jmo)

As I understand the SMC's Are used with a special rating table and according to what and how severe the veterans service connected ''separate condition is?   is how they give out the higher SMC Award.

  on my ebenefits it has me as a 100%final degree rating...again nothing was noted about IU being moot. (so I am still to be considered I.U. unless I get an increase on my 70% PTSD to the 100%rate.

oh I have other conditions that could be service connected as secondary claims  but I am ok with what I got and I do not need the stress of filing for other conditions the VA Puts us through , this PTSD stress and anxiety is enough for me and dealing with the VA Therapist on bi weekly bases the last 5 years or so...I just can't put myself through these  type claims processing anymore.

I believe Richard 1954 Would be entitled to a higher SMC award depending on the severity of the  separate  & distinct conditions claimed.

also known as a different body system condition and not part of his original disability.

Edited July 8, 2019 by Buck52

[Richard1954]

I appreciate all the responses... but the point is moot since TDIU cannot count toward A&A  for  step  M.  I have a single standalone  100 rating, and an  additional 100% combined,

but the combined 100%  cannot be used to get to M because the rules say  it has to be a standalone  rating at 100%.  Since I have picked up some new ratings in the last two years I though I might make it to M

but am no closer to the M rating today than I was before.  But I will keep plugging along. 

Thanks everyone 

[GeekySquid]

1 hour ago, Richard1954 said:

but am no closer to the M rating today than I was before. 

I am sure you have looked at all the VA documents and MR21-1,

but to be sure have you recently reviewed

IV.ii.2.H.2.a.  When Multiple Disabilities Should Not Be Evaluated as a Single Disability

Do not rate multiple disabilities as a single disability if there is a possibility of entitlement to

SMC under 38 U.S.C. 1114(s), or an intermediate or next higher rate of SMC under

38 CFR 3.350(f)(3), or 38 CFR 3.350(f)(4).

 

right around that same entry in the MR21 is some good info that might shine a light on a path for you to get to (m).

Not sure just an idea.

[FormerMember]

Richard 1954,

I have explained all this to you in several private emails over the past week. I went through it line by line and explained that if you have a separate 100% rating which is not part and parcel of the original rating (TDIU)-i.e. independent of the TDIU disability- that you would be entitled to SMC M due to the "bump" in §3.350(f)(4). I have re-explained it here for you again. Somewhere you have grossly misconstrued what I have explained to you and insist on mixing up the meaning and order of your TDIU award in 1996 and the later 100% schedular award in 2007. At some point you further muddied the water with discussions about SMC S and "housebound A&A".  TDIU, once awarded remains. Obviously, if you are so disabled that you cannot work, that doesn't magically evaporate if and when you get a separate rating later (unrelated) for 100%. The 100% is not a TDIU, therefore it can be applied as a bump to attain SMC M. I have told you to read Buie v Shinseki where all this is explained clearly in the King's English. VA has a duty to maximize your award by law. Your case, as you explained it to me, perfectly mirrors the conundrum espoused in Buie. 

Moving on, VA made the mistake of awarding you the lesser bump to L 1/2 under §3.350(f)(3) which was CUE and which I have already explained to you over the course of 4 emails. They owe you the difference between L 1/2 and M for the period from 2007 to the present for that CUE. What part of that is so hard to absorb? I'm not sure how asking the same question, getting the advice, and finally, emailing that you understand what I explained warrants coming on here afterwards requesting further illumination to hear the exact same thing. Worse, saying the advice offered you was clearly wrong is grossly incorrect. The quote below shows you not only have not grasped the meaning or context of the SMC regulation, but purposefully continue to misinterpret it to the point of redundancy. My suggestion is if you cannot understand the regulation after being told where it is, had it quoted and explained to you chapter and verse, and, lastly , that SMC S is not a higher award than SMC M-despite the seeming incongruity that alphabetically they are not in order- that perhaps you probably should not attempt this without competent legal assistance. To be clear, SMC S is not a higher rating than SMC M. SMC S pays $3,491/mo. (single) versus $4,198/mo. for SMC 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.

Please illuminate us with your legal acumen, sir.  What hat have you pulled this chestnut out of? I'm totally unfamiliar with any such codicil(s) in 38 CFR or 38 USC. Your attempts at interpretation of VA regulations are novel, to say the least. Please identify me by name in the future. I am not nameless. I stand behind my free legal advice. You have a TDIU rating. You have been awarded SMC L for A&A. You were also awarded a 100% schedular rating post-TDIU. Buie is on point. You are entitled to the bump from SMC L to SMC M under the authority in §3.350(f)(4). We can lead you to knowledge but you are free to reject any advice offered. That's your constitutional right. I have not misled you. Sadly, if you need more advice, you will have to seek it from others. I do wish you the best of luck. It appears you are going to need copious quantities of same.

 

[Richard1954]

1 hour ago, asknod said:

Richard 1954,

I have explained all this to you in several private emails over the past week. I went through it line by line and explained that if you have a separate 100% rating which is not part and parcel of the original rating (TDIU)-i.e. independent of the TDIU disability- that you would be entitled to SMC M due to the "bump" in §3.350(f)(4). I have re-explained it here for you again. Somewhere you have grossly misconstrued what I have explained to you and insist on mixing up the meaning and order of your TDIU award in 1996 and the later 100% schedular award in 2007. At some point you further muddied the water with discussions about SMC S and "housebound A&A".  TDIU, once awarded remains. Obviously, if you are so disabled that you cannot work, that doesn't magically evaporate if and when you get a separate rating later (unrelated) for 100%. The 100% is not a TDIU, therefore it can be applied as a bump to attain SMC M. I have told you to read Buie v Shinseki where all this is explained clearly in the King's English. VA has a duty to maximize your award by law. Your case, as you explained it to me, perfectly mirrors the conundrum espoused in Buie. 

Apparently I misunderstood Buie, and will have to read it again.. When I read 3.350 the simple language States that TDIU cannot be used for the Bump to M. 

Moving on, VA made the mistake of awarding you the lesser bump to L 1/2 under §3.350(f)(3) which was CUE and which I have already explained to you over the course of 4 emails. They owe you the difference between L 1/2 and M for the period from 2007 to the present for that CUE. What part of that is so hard to absorb? I'm not sure how asking the same question, getting the advice, and finally, emailing that you understand what I explained warrants coming on here afterwards requesting further illumination to hear the exact same thing. Worse, saying the advice offered you was clearly wrong is grossly incorrect. The quote below shows you not only have not grasped the meaning or context of the SMC regulation, but purposefully continue to misinterpret it to the point of redundancy. My suggestion is if you cannot understand the regulation after being told where it is, had it quoted and explained to you chapter and verse, and, lastly , that SMC S is not a higher award than SMC M-despite the seeming incongruity that alphabetically they are not in order- that perhaps you probably should not attempt this without competent legal assistance. To be clear, SMC S is not a higher rating than SMC M. SMC S pays $3,491/mo. (single) versus $4,198/mo. for SMC M.

I never said anywhere that SMC S was a higher award.... all I stated about S was that TDIU and 60% can be the basis of an award of Housebound... and that from what I understood TDIU could not be used in Any way to  get the Step increase to M.... It is very apparent I neither understood your meaning,....and  SMC's that is why I was asking the questions again.

 

<<< 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.

 

Please illuminate us with your legal acumen, sir.  What hat have you pulled this chestnut out of? I'm totally unfamiliar with any such codicil(s) in 38 CFR or 38 USC. Your attempts at interpretation of VA regulations are novel, to say the least. Please identify me by name in the future. I am not nameless. I stand behind my free legal advice. You have a TDIU rating. You have been awarded SMC L for A&A. You were also awarded a 100% schedular rating post-TDIU. Buie is on point. You are entitled to the bump from SMC L to SMC M under the authority in §3.350(f)(4). We can lead you to knowledge but you are free to reject any advice offered. That's your constitutional right. I have not misled you. Sadly, if you need more advice, you will have to seek it from others. I do wish you the best of luck. It appears you are going to need copious quantities of same.

When I have private conversations with anyone ... they are private and I do not disclose that person by name regardless of who they are or what we talk about, I do this out of respect for that person because it is no one's business  unless we both agree to disclose our name and conversation. Again, apparently I misunderstood what you were saying, and   I am sorry that you feel disrespected, or dishonored.  I am sorry you feel I am a lost cause... I have dealt with the VA since 1986.. You saw my awards to include the auto adapted equipment and adapted housing... I did all that work without any assistance from anyone  just reading the regulations... What had me screwed up on the Bump to M  is that is specifically states TDIU cannot be used as the 100% rating for the Bump... I now think I understand what you were saying... and I will file the necessary paperwork ( CUE) and  I shall see what happens....  By the way CUE is not new to me, I have won 3 CUE awards in the last 33 Years that concerned my claims .. I don't know why I have had a hard time grasping this .. but sometimes it is what it is....I thank you for your time....

 

 

 

 

 

 

[FormerMember]

To Robert1954

Sir, I am an Officer of the Court. I cannot lie, mislead, shade the truth or condone fraud. You asked for advice-free, I might add. I gave it based on what you presented. You promptly came back to this forum and baldly stated "I had been mislead [sic] by someone who will remain nameless". I am on this forum regularly.  I presume you wrote that with the sure knowledge I would see it. To mislead is to deceive-i.e. you are implying I purposely led you astray with not just incorrect advice but knowingly false advice. There is a vast difference between offering incorrect advice and offering knowingly misleading advice that might harm or disenfranchise a Veteran and his claims.  I did neither but stand accused. Where I come from, that's looking me in the face and calling me a liar without even bothering to say my name. I could lose my accreditation over something like this. I don't need an apology. Murphy's First Law- 'No good deed goes unpunished.'- still holds true. 

This forum of Theresa's is a wonderful resource for all of you. No one is better or higher up than another. I am a Veteran just like all of you. I was enlisted-again much like most of you. I try to give back what no one before could give me in 1989- or even 1999. I was the FNG  here in 2006. Unlike most of you, I made this a life calling after recovering from stage 4 Hepatitis C with cirrhosis.  I post information here to help you. I give advice if asked -when I can. I don't do it because I like to hear myself talk. I have a lot of Veterans as my clients-many of whom I have met here, I might add. I'm not an attorney. I don't think like them nor do I act like them. I'm a "nonattorney practitioner" because I have been admitted to the Federal CAVC. That's a small step up from an agent. Nobody told me what I can't do in this business. That's why I look up DRO's telephone numbers in va.gov directory and call them. My attorney colleagues roll their eyes, tut-tut and blow bubbles.  So please listen. I don't offer stupid advice. I practice what I preach and surprisingly, I'm still batting .1000 at this in my third year. You will also find about 1000 more alumni of the Win or Die Hepatitis C club who have won since I began teaching other Vets how to win jetgun claims in 2008. 

Remember what a Doctor's prime directive is-First, do no harm. Every bit of advice you offer should be correct. Don't shoot from the hip. Don't guestimate. Each and every claim is different. There may be some generalities in common but rarely specifics. Reciting your experiences with VA can be good advice. Try to refrain from saying "And this is why you should do it exactly like I did if you want to win". It took me almost twelve years to really learn what I do of VA law so far. I feel like a glass half-full... with ample room for the need for far more knowledge. 

SMC and CUE are two of the hardest subjects to understand-let alone fight and win-with VA. Reading VA regulations requires an understanding of VA terms. You can count how many of us agents/attorneys  who excel on this type of claim (SMC) on one hand. CCK is the most famous. In fact, I learned the basics from none other than Robert Kirkpatrick himself. He was doing this pro bono in 1992. There are a wealth of his appeals in the BVA appeals site. SMC has more turns than the Mississippi River. It's not odd that Richard1954 has trouble absorbing this. What is odd is not believing me. This isn't Peggy's Pink Site with former DROs for administrators that are censoring comments and depriving you of things like Fergoogle and the BVA Purplebook.  We're here to help the Veteran-not compete for members with other Vets help sites. When you're accredited, you have to watch every word that exits the pie hole. Please do not wreck my reputation. I spent a long time building it.