ptsd ? about SMC-S and Retro payment

[Sasquatch]

First, let me say thank you for a great and knowledge on this site is overwhelming.

I found this site recently and have been bouncing around here. That's when I found SMC-S.

I'm rated 100% TDIU for PTSD effective Dec 2003 as stated in my decision letter. I was also rated 60% for my back at the same time but SMC was never considered.

This leads me to ask 2 questions from the members here:

1. How did you apply for your retro SMC? 

2. Has anyone received a retro payment based on a decision prior to 2008?

Thanks for the help & info.

[Berta]

."Has anyone received a retro payment based on a decision prior to 2008? "

Yeah, I did. I filed a CUE on a 1998 decision regarding my deceased husband. And received retro payment because ,as a widow who had filed claims within one year after my husband died, I was still eligible for accrued award retro amounts. He had died 4 years prior to the 100% award and the 1998 decision I Cued.

The rating sheet held many errors and the decision never mentioned SMC consideration.

It was obvious to anyone who could read it at the RO, that since he had been already established at 100% SC PTSD P & T, (noted on the rating sheet)and also had a 1151 stroke (1151 meaning caused by VA) and was 100% disabled by the stroke ,that 100% plus 60% or over, to include 1151 awards, equals SMC consideration.

The way I shaped that CUE is in our CUE forum.

Do you still have the decision and the rating sheet from it?

If so can you scan and attach it all here?

(Cover Cfile number etc prior to scanning it)

Did they make any statement whatsoever regarding the lack of SMC consideration?

 

[Sasquatch]

Thank you for the response Berta. I've read many of your responses on other threads.

I wasn't to sure I could figure out the scanning & attaching or if the scanner still worked. anyway

The RO never mentioned SMC anywhere in the 4 page TDIU Decision letter.

 

[Berta]

This decision was made before Bradley V Peake, as referenced in this decision:

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files4/1531648.txt

I regret that I cannot recall if Bradley V Peake was retroactive to past decisions....others here will sure remember that, and I will try to find more info on that too.....

I am stuck on something else  here....they also found that you had agoraphobia with the TDIU....that alone should render the SMC HB S award.(Housebound) nowadays...but I sure hope others chime in on this too.......

Also the employment problem was stated with your PTSD exacerbated by the "severe chest pain"....

Did you serve incountry, Vietnam?

If so ,do you have ischemic heart disease?

We have had many many discussion here on Bradley V Peake....because that decision considered TDIU as warranting SMC, when all criteria had been met medically. Bradley was decided in 2008........

"1. How did you apply for your retro SMC? "

By filing a CUE claim...

Question to all.....since TDIU and agoraphobia , as part of that award, was established in this rating prior to Bradley, shouldn't VA have considered the HB award then?

 

 

 

[broncovet]

Cue is based on the laws at the time of the decision.  So, its not CUE for the VA to not consider SMC S (per Bradley vs Peake)  prior to Bradley.  Since Bradly had not happened in 2004, its not error for VA to not consider the effect of Bradley.  

You can still apply, and there may be CUE, but not for the above reason.  (There can be many errors in a decision.)  The error that "sticks out" to me is that you have agorophobia, according to the decision.  Agoraphobia often means SMC S housebound.   http://panicdisorder.about.com/od/agoraphobia/a/fearleavinghm.htm

It also may mean error that if you have agoraphobia, that they failed to consider you for SMC housebound.  In other words if the VA admitted you have a fear of leaving the house, why not housebound???

There are 2 ways to get to housebound, one is statuatory (100 plus 60) and the other is Housebound IN Fact.  It appears the VA admitted you were housebound in fact (having agoraphobia), but failed to consider your for SMC S Housebound IN FACT.  

Edited March 16, 2016 by broncovet

[broncovet]

Also, you may be eligible for SMC S under Howell, which occurred in 2006 (earlier than Bradley), so it may be better for you. (more retro).  

You seem to meet the howell criteria:  unemployable due to SC conditions and can not leave the home for work.  

http://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

[Berta]

yes and even Buie holds some keys to this:

http://www.uscourts.cavc.gov/documents/Buie_08-2705_opinion_with_errata_April_2011.pdf

The situation seems to be whether prior to Bradley, the 70% should have been 100%, in your case.

Were you ever turned down by VA Voc Rehab solely for your prime TDIU disability prior to this older decision?

Do you receive SSDI solely for PTSD? If so when was that determination made by the SSA?

The 2003 decision you posted only mentions about one week of treatment records, to continue the 70% rating.

Were you ever hospitalized privately for PTSD? Prior to the Bradley 2008 decision?

A CUE on those bases ,however ,would rest on evidence the VA had   regarding the above questions in 2003 but that they completely  ignored.

Have you re opened your claim recently to request SMC based on the agoraphobia?

There might be no way to recover any retro on SMC on the older decision.

Still, after over 3 decades of dealing with VA, I assure you that Nothing is impossible with the VA.

Do you have a copy of your C file and your VA medical records?

Great point by Broncovet ......the Howell decision....

https://asknod.files.wordpress.com/2014/08/copy-of-howell-04-0624-opinion-final1.pdf

and be sure to read the whole link above from Alex.

SMC CUEs.... everyone ....  remember that if the medical evidence warrants SMC consideration (such as if you have the 100% plus 60%) or after 2008, TDIU plus separate 60% or are Housebound by your SCs, the CUE lies in the ROs' "lack of consideration."

of SMC when the established record warranted that consideration., but the decision ignored the SMC mandate

Once I got them on that lack of consideration in a 1998 decision, then the ratings errors they made were corrected.

But regardless of those errors, they still should have considered and awarded SMC in 1998, in my case and finally did in 2012.....

almost 20 years after my husband died....due to VA health care itself.