100% disability a guarantee for SMCs?

[allansc2005]

Morning folks,

Hope everyone had a safe and fun holiday season.

So, after about 5 years of fighting I was finally able to help a veteran get 100% disability-100% schedular.

She previously was TDIU with 90% Schedular, and at this point we are not sure what disabilities the VA used to get her TDIU(her past written decisions were lost in a fire).

 

Questions: Does 100% Schedular automatically come with SMC(s)? Yes, I know the criteria, have to have other conditions not associated with the 100%, has to be 60% or more....

Other than waiting months and months to get a copy her PAPER TDIU ratings, how can we determine what conditions were used to get to that TDIU? Example: Lower back problems, tinnitus, GERD...

IF her 100% Schedular letter doesn't include SMC(s), then how do we apply for them?

Thanks,

 

Allan 2-2-0 HOOAH!

 

 

 

 

 

 

 

 

 

[brokensoldier244th]

If she's scheduler than she's not TDIU anymore- or shouldn't be, usually. When it happened to me as part of the same rating action I was "TDIU for several months of the eventual time period, then within the same decision they then increased it to 100 sched from a later date. The decision letter said in it somewhere that TDIU was moot since I was 100% already.

The SMCs aren't automatic just with 100%, you still have to meet the other criteria.

A vso can get the past decision letters- they can just print them off of their access to VBMS. 

[allansc2005]

Thanks brokensoldier.

Another question: Does the VA usually use ALL the medical conditions when awarding TDIU?

She-veteran has probably 20 conditions ranging from back issues, hearing, knees....

 

Allan 2-2-0 HOOAH!

 

 

[brokensoldier244th]

No, usually when you apply for IU you list the worst of them that are causing the difficulty. 

 

[broncovet]

Your doctor's opinion should suffice. 

What was the reason your doctor gave that you were "unable to maintain SGE due to SC conditon(s)?  

Which were the SC conditions?  Ptsd? Depression?  Bad Knees?  

Or all of them?

On the newer tdiu form's, they ask which condition(s) caused your tdiu?  So you write down the ones you think caused your tdiu.  

Yes, you should look at your previous tdiu decision to see which condition(s) resulted in tdiu.  

    There are 2 ways to get to SMC S:

    You have to have a single 100 percent disability and:

1.  An additional 60 percent combined disabilities seperate and distinct. OR

2.  You be housebound in fact.  Housebound in fact means that a doc says you are "substantially confined" to your premisis.  

    "Substantially confined" does not mean you can not leave the home.  Howell says it means you are unable to leave the home "for work".  So, if you are tdiu, the suggestion is that you should be substantially confined to your home "unable to leave the home FOR WORK".  

    This said, Im quite certain "not every" tdiu Vet gets SMC S.  

    But, Howell is included in the M21...

     But VA watered down Howell.  Instead of saying "you cant leave the home for work" makes you eligible for SMC S, they say "you can only leave the home for doctor appointments".  

      What I have seen is that VA does not want to grant SMC S to every TDIU, so they deny it, then if the Vet complains and appeals, they often award SMC S.  

      However, they dont want this going to CAVC to establish the precedence that "SMC S" should be awarded to every tdiu Vet, based on "congress intent" contained in Howell.  

   I think VA "gets" that they want to keep granting SMC S, willy nilly to tdiu Vets, and not be forced to give every tdiu Vet SMC S, based on "congress intent" in Howell.  

     So, I think they try to keep it out of the CAVC, so that no precedence is established, meaning they can continue to deny tdiu Vets SMC S...at least until some sharp lawyer such as Carpenter or CCK law "hold the VA to the fire" for this.  

Edited January 14, 2022 by broncovet

[broncovet]

My advice:  Go ahead and apply for SMC S, if you have not.  Dont worry about appeals until they come, but its good to make your claim bullet proof and do your homework.  

[pwrslm]

Info on this issue here.