tdiu Smc An Issue

[Berta]

As you know the VA has consistently denied any SMC consideration as accrued benefit in my husband's case.I have SMC 2 CUEs pending for last 5 years that they keep sending me the same SSOC on.

But my recent award means in spite of their past errors on this-they have to resolve this issue anyhow -and now -not do to SMC 1151 but due to direct SC disabilities- totalling at least 300%.I am aggressively fighting that point with them.

I feel this is important info we should have-

NVLSP makes the point that M21-1 Mandates adjudicators to infer and consider SMC whenever the medical evidence warrants it.

A mandate is a 'have to' and yet it is more one thing the VA can fail to do properly.

I am beginning to think that since inferred SMC actually requires the VA to consider all medical evidence after they make direct or 1151 100% award or a TDIU award-

this additional review of the medical evidence for SMC purposes probably isn't even done.

Also I bet many vet reps do not realize that 1151 awards also come under the SMC criteria.

A local vet I helped got 100% under 1151 and an additional SMC award under 1151-they messed him up medically and probably shortened his life.

There are a few widows claims at BVA for accrued SMC under Nehmer-

and very few 1151 and SMC claims.

In one letter I received years ago the SMC consideration was denied because they said the veteran didnt ask for SMC.

He couldnt -he was dead already and besides that-SMC consideration is Mandated when the medical evidence warrants it-so most if not all veterans should not have to request SMC at all.

Hope this all makes sense-I just get livid over the crap the VA can state in their letters to us which is often not based at all on fact or established VA case law.

And if we buy what they are selling-without challenging them- we have lost $$$$$.

[Teac]

John is right Teac-

My CUE was filed in 2004 and they have yet to even read my legal evidence-or even acknowldege and apply M21-1 regs to my claim.

I found a similiar widow's claim for accrued SMC- it took her years to succeed at the BVA.

The medical evidence has to be fully established because the CUE can only depend on misapplication of legal citations in 38 CFR and/or M21-1.

I hope that yours is decided soon. I don't think my case is as complex as yours. All I should have to show is that I was entitled to an automatic schedular award of housebound from the time I was awarded 60% in 2001 for my lung condition, because I already had TDIU from 1999, for a back injury. Basically, I cited the two references we have talked about here, as authority for the award, and then go on to say the va was obligated to award the SMC without my having to request it. Then I lay out the dates in question.... Of course after 22 years, nothing is a slam dunk with the va.

Ironically, I won the 60% award based on CUE. Then when I was granted 100% in 2007, I was awarded HB, I appealed and cited CUE and won A&A at the L 1/2 rate. So far nothing has been easy to get when it comes to our friends at the VA.

The local regional office is going to argue that TDIU + 50 does not entitle me to a housebound rating.... but we now know otherwise.. I fully expect this to go to the BVA, and to be awarded on merit. But, we will have to wait and see.

Edited November 13, 2009 by Teac

[john999]

Teac

You have a great record on CUE. I have one going to the BVA. I had a lawyer and we both thought the error was obvious. Not to the DRO! It is almost 2 years old now.

My CUE goes back to my original rating in 1973. You know they think that is poison due to possible large retro. If am TDIU back to 2001. I have an additional 60%. The VA never mentioned HG or A&A.

[donnieragsdale]

Related to SMC, I need your suggestions;

I have had TDIU at 100% PT since Oct 2007 (last day of employment). It was awarded based on 70% PTSD. I also had 0% hearing loss, 10% Tinniitis at the time of the TDIU award.

Subsequently on appeal, I've been awarded recently 20% Lumbar Back, 10% Plantar Facaiitis, and 50% Obstructive Sleep Apnea. The award effective date for these three injuries were back dated to July 2006. In the C&P exam, done for these three issues, the doc noted; "he is housebound to a greater or lesser degree".

With the recent forum discussion related to SMC and the "Bradley v Peake Court of appeals for veterans claim No 06-854", do you believe they should have considered SMC with the recent awards I received?

I know it was mentioned that one award must be 60%, but my back, feet, and Apnea were all the result of one injury sustained back in 1969.

Do I fit the requirements for the SMC award back to my TDIU award date of OCT 2007.

Please give me your thoughts.

[john999]

I would try and get the HB award and then worry about going back to get retro HB. You might need a stronger statement about being HB.

[Teac]

Related to SMC, I need your suggestions;

I have had TDIU at 100% PT since Oct 2007 (last day of employment). It was awarded based on 70% PTSD. I also had 0% hearing loss, 10% Tinniitis at the time of the TDIU award.

Subsequently on appeal, I've been awarded recently 20% Lumbar Back, 10% Plantar Facaiitis, and 50% Obstructive Sleep Apnea. The award effective date for these three injuries were back dated to July 2006. In the C&P exam, done for these three issues, the doc noted; "he is housebound to a greater or lesser degree".

With the recent forum discussion related to SMC and the "Bradley v Peake Court of appeals for veterans claim No 06-854", do you believe they should have considered SMC with the recent awards I received?

I know it was mentioned that one award must be 60%, but my back, feet, and Apnea were all the result of one injury sustained back in 1969.

Do I fit the requirements for the SMC award back to my TDIU award date of OCT 2007.

Please give me your thoughts.

I think you had a valid claim to schedular housebound the day you had TDIU and were awarded seperate combined ratings totaling 60%. I don't think you need to prove that you are actually housebound, because the way the rule is written it is an either/or situtation,,, that is you either have total disability + 60% or you show actual housebound. You seems to meet the requirements with the total + 60%.

[deltaj]

Berta,

Yea - Happy Veterans Day - Time for VA to screw around with the web site.

I'm finding BVA Decisions OK here.

http://www.index.va.gov/search/va/bva.html

Carlie, You are such a blessing to all of us here at hadit. I just used your link a few minutes ago to look for BVA decisions on 38 CFR 4.19 Consideration of Age. I simply searched on this BVA link under 4.19 and came across all sorts of interesting decisions including the fact that BVA decisions are not supposed to have conjecture about whether a veteran can work (see Beaty v. Brown). I'm not quoting Beaty v. Brown correctly but it looks like an interesting case. My husband's case has one decision where V.A. considered his age contrary to 38 CFR 4.19 by stating something like, "This is a 33 year old veteran . . ." The social worker's report, considered in that rating decision did have conjecture, "This veteran may be able to work if he has constant support . . . " Heck, my husband is supposed to argue for CUE based on the evidence of record at the time of decision but it wasn't until 19 years after the decision where V.A. erred in considering his age that VARO received a statement on my husband's wages from Social Security showing that he had marginal employment below the poverty threshold for the year V.A. erred in considering his age and in every year thereafter.