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TDIU P&T, can you get much higher?


allansc2005

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Morning folks, hope all is well.

Got a veteran who was just awarded TDIU P&T, and one of his conditions used for that TDIU is PTSD which was previously rated at 70%.

 

Q. Can that PTSD be used as a precursor to obtain a SINGLE 100% scheduler rating, thus opening the door for seeking SMCs?

The veteran has a few other conditions that are not included in the TDIU for which a 60% rating is achievable in order to qualify for SMCs.

 

It's my understanding that the entire TDIU award in itself DOES NOT count as a SINGLE condition-100% that's required to file for SMCs.

Thanks,

 

Allan 2-2-0 HOOAH!!

 

 

 

 

 

 

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Buck, so 100% scheduler along with another condition or conditions 60%=SMC.

Yes, exactly. Not TDIU in itself and another condition@60%

 

brokensoldier244: I'm reading Chris Attig's examples for SMC. "Example A: ONE condition rated at 100%, and another condition or conditions rated at 60%+...

 

Attig also talks about "100% TDIU(not 90% TDIU, not 80% TDIU..) when discussing SMC.

 

Yes, there is a difference. I'm a perfect example. I'm 90% TDIU and have another separate set of conditions that are rated at 70%, and when I did a NOD, now relabeled "Higher Review" , Bradley v Peake was thrown in my face "You have to have ONE condition(NOT TDIU rated at 90%) rated at 100%..."

From all accounts, this is a VERY controversial subject, and it looks like the VA is winning the war.

 

Allan 2-2-0 HOOAH!

 

 

 

 

 

 

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The way I see it it's two ways to smc s.

Tdiu based on one condition 

IV.ii.2.H.10.f. Determining Whether the Veteran Is Substantially Confined for Housebound in Fact Entitlement


A housebound in fact determination requires a Veteran’s inability to leave his /her place of residence and immediate premises in order to earn any income. However, it does not require a total inability to leave the place of residence and immediate premises for all circumstances. Leaving home for medical purposes cannot, by itself, serve as the basis for finding that a Veteran is not substantially confined for purposes of SMC housebound benefits. The limitations must be the result of the Veteran’s SC disabilitie


The second way is tdiu based on more than one condition. Will need to have the extra 60 percent rating  not part of tdiu.

Smc s

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Mr cue, correct! And that ONE condition HAS to be rated at 100% Not TDIU(unless the TDIU contains a 100% scheduler rating).

 

Yes, the separate 60% rating, which can be combined, has to not have anything to do with the 100% decision. 

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22 minutes ago, allansc2005 said:

Buck, so 100% scheduler along with another condition or conditions 60%=SMC.

Yes, exactly. Not TDIU in itself and another condition@60%

 

brokensoldier244: I'm reading Chris Attig's examples for SMC. "Example A: ONE condition rated at 100%, and another condition or conditions rated at 60%+...

 

Attig also talks about "100% TDIU(not 90% TDIU, not 80% TDIU..) when discussing SMC.

 

Yes, there is a difference. I'm a perfect example. I'm 90% TDIU and have another separate set of conditions that are rated at 70%, and when I did a NOD, now relabeled "Higher Review" , Bradley v Peake was thrown in my face "You have to have ONE condition(NOT TDIU rated at 90%) rated at 100%..."

From all accounts, this is a VERY controversial subject, and it looks like the VA is winning the war.

 

Allan 2-2-0 HOOAH!

 

 

 

 

 

 

TDIU IS a 100% rating, regardless of what the schedular percentage is. If it was 100% schedular on its own then the TDIU would be rendered moot. 

https://www.va.gov/vetapp09/files4/0935536.txt

 

A review of the record does not indicate that the Veteran has 
any one disability rated as 100 percent disabling on a 
schedular basis, but the record does disclose that he was in 
receipt of a total disability evaluation based on individual 
unemployability (TDIU) from December 2000, and the Board 
concludes that the TDIU was based on his service-connected 
posttraumatic stress disorder (PTSD) evaluated as 70 percent 
disabling.  The claims folder is a rebuilt folder but a 2005 
rating action suggests that the only service connected 
disabilities in 2000 were PTSD rated 70 percent and three 
disabilities rated as noncompensable.  Accordingly, the TDIU 
is considered to be based on PTSD alone.  

The United States Court of Appeals for Veterans Claims held 
in Bradley v. Peake, 22 Vet. App. 280 (2008) that for 
purposes of special monthly compensation the statute did not 
limit a service-connected disability rated as total to only a 
schedular 100 percent rating and the regulation permitted a 
TDIU rating based on a single disability to satisfy the 
statutory requirements of a total rating.  Thus, in this 
case, PTSD is considered a single service-connected 
disability rated at 100 percent. 
(Regardless of the fact that it was schedularly rated at 70%)

 

SMC was granted.

Edited by brokensoldier244th
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