SMC H.B. OIG- INVESTIGATION WILL HELP LOTS OF VETS!

[broncovet]

Buck:

    There are TWO ways, a Vet can qualify for SMC S:

1.  100% plus an additional 60 percent  or

2.  100% and "substantially confined" to the home.  

No, you dont have to be 100 plus 60, you can be either and get it.  

 

     Remember the Howell criteria, which defines "substantially confined":

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

Because the meaning of the term "substantially confined" is ambiguous and there is no regulatory interpretation, "the Court must determine the meaning" of the term "and the Board's obligation" thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra. The Secretary submits that the clear implication of this term is that the requirement that one be "substantially confined" is met when the claimant is restricted to his house except for medical treatment purposes. The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) 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.

[Berta]

Buck said:

"The VA Raters are required to Inferr the SMC's when a veteran meets the Criteria for the SMC, you don't apply for SMC. "

He is CORRECT!

A 1998 decision I received after my husband died (award DIC 1151) had the wrong ratings for his stroke as well as no SMC consideration.

In 20O3 I filed a CUE on the decision.VA had failed to honor the SMC mandate and failed to consider him for SMC.

The CUE 1998 SMC CUE was awarded in a AO IHD Nehmer decision. 2012.

I filed CUE on that decision

Long story already here in our CUE forum as to how this type of CUE goes.

I have a pending appeal on the CUE and might file another CUE but my point is Yes-if the VA had established medical evidence at time of ANY decision that should have warranted SMC consideration (meaning evidence of 100% ,or TDIU solely for one disability, and the veteran is Housebound by medical evidence or has an additional SC ort 1151 SC disability at 60% or more, the VA has violated M21-1MR and the SMC mandate, to the detriment of the veteran.

I think I even posted my evidence here under the CUE stuff for the SMC CUE claim.

NO claims should take 9 years to get a RO award but mine sure did.

In my appeal I had to list the awards resulting from my husband's SC and 1151s.

I got tougher and smarter in those nine years. This is one of the awards explained to the BVA ,directly from my appeal:

"HBP under 1151 from 1988 to DOD 1994- claim filed in September 2012, denied on March 4,2015, I filed CUE under violation of 38 CFR 4.6 immediately (March  15, 2015 and then was awarded on  April 2, 2015. No accrued amount paid." Accrued is the basis of the appeal on a separate disability,supported by a VA General Counsel Opinion.

I am not saying a CUE in your case would go that fast....this was a CUE I filed as soon as I got their decision....within the one year NOD time frame,under 38 USC 4.6.

But any CUE should NEVER take 9 years as my SMC CUE did. I think that was because of the billboard.

 

 

[Gastone]

T-89031, if you have the (1) SC at 100% SC, all by itself, with no other SC's combined for the 60% for a Statutory SMC S (1), the only other way to get to the Housebound SMC is with a Physician's completion of the VA Housebound/aid & Attendance application form, it's not an automatic award.

When you have a chance, review the 09/28/16 VAOIG Report that Buck referenced. The SMC S (1) over-payments as well as under-payments will make your head spin.

See VBMS 11-0 issued 06/17/2016, VA Rating Staff Directive regarding, rater must consider all Claims where a single condition is rated as 100%, for Statutory SMC S (1).

Semper Fi

[Berta]

Thanks for the directive info....I hope some posts a M21 1MR version of it.

Maybe I should clarify my post above  regarding the SMC CUE I filed.

The VA clearly had established medical evidence in the 1998 decision that my husband had both 100% under 1151 for a stroke as well as 100% P & T for SC PTSD...that warranted the 100 plus 60 SMC scenario.

Also VA had in 1998, established medical evidence that he was housebound.

That also warranted the SMC S HB award.

My decision actually states both reasons for the SMC S award. Their response to a CUE claim I have on appeal states both reasons as well.

It doesn't mean 2 SMC S payments.It just goes to show that after 9 years someone actually read the established medical evidence....and legal evidence (their regs)

And also the printout I sent them from the VBM from NVLSP explaining the Statutory mandate of SMC, which I used as evidence.

[Buck52]

Ms berta it could possibly be after April 2017 for that to happen  but we all know how the VA is with there target dates.

Furthermore, VBA has initiated a working group to clarify the statutory term “substantially confined” to ensure consistent application of this benefit. VBA plans to complete these actions by December 2016. Finally, the Principal Deputy Under Secretary for Benefits stated that VBA has identified approximately 11,600 veterans being paid compensation at the housebound rate with a combined evaluation of 90 percent or less. VBA will review the cases and certification will be provided to the OIG. The target completion date for these actions is April 2017. The Principal Deputy Under Secretary for Benefits’ planned corrective actions are responsive to the recommendations, and we will follow up as required. 

[Buck52]

What happens if OIG finds a veteran was paid SMC'S and the rater made a mistake?...will the veteran have to pay all he has got with SMC-S Back?

  That could be catastrophic to the veteran and his family  if he has been getting SMC for years.

http://www.va.gov/oig/52/reports/2005/VAOIG-05-00765-137.pdf

Interesting read!

Edited September 30, 2016 by Buck52