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Smc S1 Eligability

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dav_marine72

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  • HadIt.com Elder

Hi Everyone,

Does anyone have experience with SMC for total rating plus 60 percent or housebound status? I think Berta raised a red flag on this for me before but I believe I know have found the regs for it. Anyone that could provide any addtional info would be appreciated.

Here is the deal:

During my temp 100% convalescent rating for my L3-S1 fusion surgery performed in March 2009 I was awarded this SMC based on the fact that I had a 100% rating (my back) and a 50% mental rating and a 30% asthma rating. Why I wasn't considered for housebound I have no idea because I only leave for appointments. I can't sit, stand, or walk more than a few minutes at a time without switching those positions. So they take away the SMC when my convalescent leave is up in July. I was awarded TDIU for May 2009.

Recently my SO asked the RO for regular aid and attendance for me because my wife can't work because she needs to take care of me (still waiting on this one). The rating decision even included a statement from the RO admitting this. Anyway back to this SMC. I'm reading the Veterans Benefits Manual and guess what I see? To get this SMC it states there are two ways:

First you have to have one service connected rated at 100% and addtional service connected disabilities involving a different bodily system that are independently rated at 60% (411). The second way to get it is have one service connected disability rated at 100% and be housebound. The RO stated because my back went to temp 100% and my mental 50% and asthma 30% this is why I rated it. Well I am reading the the little notes at the bottom of the VB manual and it states this:

(411) 38 U.S.C.S. 1114(s); 38 CFR 3.350(i)(1) (2007). In a VA Gen. Coun Prec. 66-91 (Aug. 15, 1991) and 2-94 (Jan. 21, 1994), the VA general counsel held under 38 U.S.C.S. 1114(s). several separately rateable disabilities cannot be combined to achieve a single total (100 percent) rating in order to qualify for the special monthly compensation. The threshold requirement for entitlement under this statue is that the Veteran must have "a" (that is, at least one) disability rated as total.

Here is the big verbiage for my case - The 100 ratings under 38 CFR 4.16 (TDIU), and 38 CFR 4.28 (prestabilization ratings). 4.29 (ratings for disabilities requiring hospital treatment), and 4.30 (convelescent ratings) of the rating schedule may be used as a basis of entitlement for SMC. See VA Gen. Coun. Prec. 66-91 (Aug. 15, 1991); See also manual M21-1MR, part IV, subpart ii.2.H(a.)

Sounds like the RO should have never stopped paying me the extra $295 a month for this SMC based on the award of TDIU in effect once the convalescent leave ended...................

anyone??????????

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I am 100% based on unemployability. I am also SMC-S1 it all came down to what the VA examiner said I was not able to do anymore which was the basis of my AA. As far as I know I just checked the box when I applied on ebenefits for my increase and IU claim. I am also not P and T yet apparently I wasted 4 months when I got my decision you submitted the incorrect form.

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When I talk to Vets, quite often they'll say their 100% SC for PTSD. Usually, it turns out they are actually IU based on a 50 or 70% PTSD SC. Mid age Vets (under 55) very rarely get an IU T & P No Future Exam Rating, when it's strictly based on a MH issue.

An IU Award based on (1) issue regardless of that issues actual Rating, is considered to qualify as the necessary 100% (1) condition required for SMC S (1) rating purposes. The vet must have an addition SC or SC's that have a Combined SC % of 60% to Qualify for the Award.

Back in 10 or 11, the IU Claim requested the Vet to identify which SC's caused his IU. Looking back, I errored by listing my (3) major SC's PTSD, SA, and CAD. All (3) were included in the IU Award, taking the SMC S (1) off the table. Ignorance is Bliss, I didn't know about SMC S (1), my bad.

My SA got bumped from 50 to 100% 12/15 with additional SMC S (1), T & P NFE. My IU Award is no longer listed on any of my VA Rating Letters.

Semper Fi

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  • HadIt.com Elder

Gastone I agree  but when I got my IU with P& T no future exam scheduled and condition as in nature an chronic , I was age  50 probably just at the Border line as for as age. ...No SMC-S for me at that time. (15 years ago)

I never was inferred to SMC'-S   >like they do it now.

Since  then I have a 70% CHRONIC PTSD Award and that booted me up to the SMC-S-1 & SMC-K

 I Almost Appealed that PTSD Decision as it was listed as ''chronic'' and I feel it should have been rated 100% But I never Appeal it ( hine sights 20/20)

 As I understand now when a veteran is Awarded I.U. W/ P&T....That means they can't leave home for work...so that should meet  the SMC-S Criteria ..but I am not sure  , just recently this discussion was brought up here in Hadit.

Your correct about  veterans having a 90% w.I.U. or 100% S.C. rating and have another separate rating at 60%  then then that meets the SMC -S Criteria .

As I understand  a Veteran with the Extra Scheduler Ratings 70% to 90%  IU P&T is considered 100% ,Although it may show his 90% rating but it also shows the TDIU P&T  Which is considered to be  100%  the difference is the P&T .

Also Gastone you may want to go to e benefits and check your S.C. rating disability's  as what they have you rated for, If you were rated IU back in 10/11 it should still be showing the I.U.

Once a Rating has been Awarded their suppose to keep that rating listed  for historical Reasons.

jmo

Edited by Buck52
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  • HadIt.com Elder

The Veteran has to have a rating of 100 percent (total). Then a single or combination of ratings that equal 60 percent.

Even if the convalesent rating is 100 percent you are eligible for the SMC but after the stabilization rating when the VA lowers the rating and rates on residuals, then SMC criteria is no longer met.

That is a chunk of money to lose.

J

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  • HadIt.com Elder

Not following you J,

The way I read my TDIU is the 100% rating and since I am housebound I should rate the SMC S2?

" The second way to get it is have one service connected disability rated at 100% and be housebound."

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  • HadIt.com Elder

As far as housebound goes the manual states:

1. the Veteran is "substancially confined as a direct result or service connected disabilities to his or her dwelling: (413)

2. it is reasonable certain that the disability or disabilities will continue throughout his or her lifetime. (414)

I only leave my house for medical appointments.

413 - The court has held that leaving one's house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined.

414 - There is no requirement that either the single total disability or the independent 60 percent disability be permanent.

I'd have to think a back injury with DDD at three levels that has been in effect for 14 years with two failed surgeries to include removal of L3-S1 with cages implanted and a pending spinal stimulator implant because the pain is driving me insane, would be a basis that it is reasonably certain my disabilities will continue through my life.

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