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tdiu Smc S1 Eligability
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dav_marine72
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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Buck52
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
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