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 $$$$$.

[carlie]

Berta,

Do these help any?

http://www4.va.gov/vetapp09/files2/0914800.txt

the Board finds that the record raises an inferred

claim for service connection for erectile dysfunction, which

is referred to the RO for initial adjudication.

http://www4.va.gov/vetapp09/files4/0926676.txt

[Teac]

Wooo... wait a minute......

I was awarded TDIU in May 1999 for a 60% back injury, I also had a seperate 60% rating for asthma in Aug 2001. I was not awarded Housebound until Jan 2007 when I requested A&A after being awarded 100% for Asthma/COPD in Jan 2007. Later on de novo the Housebound was changed to A&A L1.

If I understand what everyone is saying I should have been automatically awarded Housebound in Aug 2001, when I was rated TDIU, with a seperate rating of 60% for asthma...

Am I correct? I sure hope so.. because that is one heck of a cue claim.....that would be 5 years and 5 months of back pay...

Wht do you think?

[Teac]

http://www4.va.gov/vetapp09/files3/0917084.txt

Another way of obtaining SMC.

Yes but this case only pertains to veterans 65 or older with Pension.

[Teac]

More info here when we discussed this issue:

http://www.hadit.com/forums/index.php?showtopic=31438

Ironically I was the first one to post Bradley v peake and some how I missed the fact that I too may have been entitled to Housebound when I was rated TDIU.

Time for me to do some additonal homework....

[Teac]

Ok I have printed and read General counsel opinion Precedent 2-94 which concerns special monthly compensation for those with TDIU. It is clear that no matter how a veteran is rated TDIU or 100% schedular if he has an additional seperate rating of 60% or is actually housebound he he is entitled to the SMC Housebound.

This was again decided in Bradley v Peake Court of appeals for veterans claim No 06-854 decided on 26 Nov 2008. The court decided that a TDIU rating does not exclude a veteran from the SMC housebound when the veteran has an additional seperate 60% rating or can show actual housebound. It also stated that a seperate claim is not required that the va must "maximize benefits"

The latter decision goes into great detail why the congress did not exclude those with TDIU from the SMC housebound.

I will be working on a CUE claim requesting entitlement to Housebound from Aug 2001 the date I was awarded 60% for asthma while I had a TDIU rating for my back condition. I have no doubt the va will award me this claim and I will be entitled to at leat $15K in back compensation.

If others are in the same boat as I am they should do the same and cite the above as authority for such a claim.

[Teac]

Well I completed my claim and it goes out when the Post office opens.. I'll let you know how it goes when I get my answer.. but I am confident that I will be awarded 5 years and 5 months of housebound benefits,, that would bring me up to the time that I was awarded aid and attendance... wish me luck!