ptsd Does Filing For Smc S Jeapordize Rating?

[jbasser]

It may not be a bad idea to get them on the phone and have them explain it to you over the phone. Then if you qualify for SMC S then you can say, wouldn't I qualify for an SMC award?

Carlie, You Rock.

J

[Pete53]

You should ask for SMC A&A per regulation and also ask for effective date at time he met the criteria. Anything you ask for can trigger a review and a physical but I have not seen a Veteran on Hadit lose a benefit by asking for another one.

Good Luck

[FormerMember]

Always remember, Special Monthly Compensation, be it "S" or even "R-2" is not a claim. It is an entitlement based on your physical circumstances. If VA did not spot it (the 100% +80%) somehow, that is error on their part. It requires notifying them. You do not "claim SMC". You inform them that you are eligible as of "X" date as evidenced by your ratings sheet in your c-file if they fail to award it. The M21 computer is supposed to spot this and regurgitate it automatically but no system is perfect and the backlog is so horrendous they may just be ignoring it. You might have to have your PCP write up a little note saying you are "housebound in fact" if you are rated less that 100% plus an additional 60%. Remember, the CAVC has decided that you need to be in "substantial compliance" with the requirements of a rating or SMC. VA does have the authority to grant "S" based on the individual's circumstances even when the lack of disabilities beyond the 100% schedular are absent. Thus, if you have Hepatitis C at 100% and PCT at 40% but are advised not to go out in the sun due to photosensitivity( or something similar like cryoglobulinemia/Reynaud's phenomenon), you can make your case. VA will only look at service -connected diseases/injuries when making this call. If you are indeed housebound in fact and are rated less than the required 100% plus an additional 60%, you may have to return to the VARO with a new filing for diseases secondary to the 100% to up it to 60%. This is what I am doing as VA turned me down in 2009. I'm at 100+ 40 +10 and lack a 20% rating to "legally" reach 60. VA can and will do this. To keep their minds on it, I included a request for "S" in addition to the new filings with my claim.

As for the old admonitions about being "greedy", VSOs have been blowing bubbles about that for decades. After five years, any rating is protected if there has been no measurable improvement in the patient.It is cemented after 20 years unless predicated on fraud. Overthrowing the 5 year caveat is rare and must be predicated on sustainable, proven improvement that is expected to continue- not a flash in the pan remission for a year followed by Stage 4 cancer returning.

As for a VSO not being aware of SMC? Well, I rest my case on the idea of using a VSO for anything other than a social outlet with it's own bar/restaurant. They mean well but they have no legal training. Look no further than the BVA decisions where the VA says you have no legal training and you did not bring a nexus letter from your doctor. Imagine having a VSO involved in it for 5 years on appeal and they fail to bring up this requirement which has been established law since Caluza in 1994. Hundreds of thousands of VSO-repped Vets find themselves wearing these fake ruby slippers every year.

Edited March 26, 2013 by asknod

[Legate]

When an award is granted to a veteran for a single condition of 100% or more, but others totaling less than 60%, it's required under M21-1MR, Part III, Subpart iv, Chapter 6, Section B, 3,d that the rater consider the applicant's eligibility for SMC-S under definition (B) (Housebound in Fact).

So the VA's award letter should address this, one way or the other. If not, a letter similar to the following could be sent on simple stationary or using VA form 21-4138.

In reference to VA letter dated XX Jan 2013, service connection was granted with a percent assigned of 100% for "PTSD, with bipolar disorder, panic attacks with agoraphobia, sleep disorder, and sleep deprivation (fill in your own here)." I AGREE with the rating, and REQUEST the required CONSIDERATION of an INFERRED ISSUE(one not specifically placed at issue by the claimant but which is derived from the consideration or outcome of a related issue from a review of the evidence). I refer to the issue of SMC-S, Housebound.

Specifically, M21-1MR, Part III, Subpart iv, Chapter 6, Section B, 3,d Considering Subordinate Issues and Ancillary Benefits reads as follows: "IF a single 100 percent evaluation is assigned in a compensation or pension case, and A&A is not payable THEN ADDRESS ENTITLEMENT TO … HOUSEBOUND."

My service connected conditions have gotten much worse during the past eight years, making it harder and harder to leave my house, which I do only when absolutely necessary. This has been a major focus of therapy by (therapist name, VA health clinic name), for over X years, Xmonths without improvement (see attached record). John W. Smith, Ph.D, Staff Psychologist, Peoria VA Mental Health Center commented as a result of his December 22 C&P examination on page 11, paragraph E: "He has been chronically unemployed and becoming less and less able and more and more housebound with agoraphobia and other related symptom; he does not leave his home except for therapy appointments and occassional late evening grocery shopping when out of food."

For purposes of housebound benefits, the Court has held that being "substantially confined" to the home means an inability to leave to earn an income. It found that Congress intended to provide additional compensation for Veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income, as opposed to an inability to leave the house at all. Hartness v.Nicholson, 20 Vet. App. 216, 220-22 (2006); cf. Howell v.Nicholson, 19 Vet. App. 535, 540 (2006)

Based on the evidence I believe I meet the criteria for SMC-S and request that since that issue remains open I be awarded SMC-S retroactive to my original 100% award date of Month, Date, Year, (END OF LETTER)

Oh, one last thing. If you go this route you may ask your VSO to use the County VSO Express TRack (CVET). This is a new joint project by certain VSOs and the VA to identify those claims which are fully developed and need minimal attention prior to decision. My VSO has said this has saved substantial time (many done well within a year) on his claims. He submits these cases with a special signed and stamped CVET cover letter. For the rater, getting a claim in and out quickly helps his stats and makes everyone happy.

Oh, one last thing. If you go this route (below a NOD in the scheme of things), keep a close eye on the calendar. If nothing comes from this letter and 10 or eleven months rolls by, be prepared to file an official NOD. If not you may lose your ability to appeal this issue permanently.

Edited April 18, 2013 by Legate