Special Monthly Compensation At The Statutory Housebound Rate

[WAC-Vet75]

"Accordingly, a determination for entitlement to SMC at the (s) rate must be made in all TDIU cases where potential entitlement to SMC (s) is reasonably raised by the evidence." This is most interesting..... now, the questions are, would it be retro to the date the TDIU was granted, but should have been SMC(s-2)? Should the Veteran be penalized because the VA did not interpret the law/regulation correctly? Is the VA notifying previous TDIU Veterans of the possibility of being eligible for SMC?

[WAC-Vet75]

I've just finished reviewing the VBM writings, on SMC, looking for additional ways to approach my "s" claim, for the 100+60 aspect, and see that they also use the combined ratings statement in their advice. I would have thought, by now, someone would have corrected this, but alas, they have not. Once I settle in, and can wait for their return call, I'll try again to contact the NVLSP for a better interpretation.

pr

I sent NVLSP my statement concerning the VA's use of combined evaluation rating concerning SMC. As soon as I get a response, I'll let you know. I did ask that they give me what argument against my contentions, less the "VA always did it that way", they could. I did some "tweeking" to it and can't seem to find any argument against it, so I'm hoping if there are, someone at NVLSP will find it.

[USNDW]

Citation Nr: 1105608

Decision Date: 02/10/11 Archive Date: 02/18/11

DOCKET NO. 07-14 752

During the pendency of the Veteran's appeal, a100 percent schedular rating was assigned for his service-connected anxietyreaction with depressive features, effective December 4, 2009. Nevertheless, TDIU is for considerationthroughout the entire period regardless of the total schedular rating. In Bradley v. Peake, 22 Vet. App. 280, 294(2008), the United States Court of Appeals for Veterans Claims("Court") determined that a separate TDIU rating predicated on onedisability (although perhaps not ratable at the schedular 100 percent level)when considered together with another disability separately rated at 60 percentor more could warrant special monthly compensation under 38 U.S.C.A.

[Berta]

"I believe, the VA is supposed to proactively award that "s" award, meaning the veteran doesn't need to apply for it, the VA is required to award it w/o the vet asking. It is assumed the veteran doesn't know about it. Anyone, please correct me, if I'm wrong? Thanks!"

I totally agree Philip-

whenever the medical evidence clearly warrants SMC consideration for S or anything else-they are supposed to award SMC.They might award the wrong level of SMC but at least at that point the veteran has a decision they can appeal.

If they should consider the SMC (by medical evidence they have) and don't even consider it enough to deny it, they have f---ed the veteran.

Most Appeals are over what they did wrong- not what they didn't do.

If they ignore the SMC issue and dont even consider it -even to deny it- then they have comitted a CUE.

I need to stress here- the medical evidence must be in VA's possession and on it's face would warrant SMC consideration.

The VA told me that my husband ( over 300 % SC) didn't "ask" for SMC so that is why they didnt consider it.

I asked them to produce the specific regulation in 38 USC that says 1114,38 USC applies, as written, to all disabled American veterans except Rodney F Simmons.

This is bull sh-t

SMC as I stated here before many times -with citations- is a Statutory and MANDATED inferred issue whenever the medical evidence warrants it.

That is established VA case law 101.

Even though they made a CUE on his IHD and CVA rating-the CVA rating alone -although wrong (80% but should have been 100%)would have warranted at least an SMC "S" Award.

I am glad you are asking NVLSP to clarify the question on combined ,bilateral etc.

I am completely confused by all that at this point.

But I have never been confused as to the statutory mandate of SMC.

In my opinion the VA snookers veterans by manipulating the SMC regs and I bet they are trying to snooker them under the AO regs as well as the new regs definitely ,in some cases,should warrant a proper SMC award.

I hold myself responsible for what led up to my SMC CUE claim because I believed what a vet rep told me in 1998 and he was wrong.That was my fault - I let it go- thinking he knew better then me.

When I re opened for direct SC death,then I realized they had snookered me and so I filed the CUE claims.

The 1998 1151 award clearly states their admission of causing additional disabilities (CVA 100% and IHD 100%)and the veterans death- totally up along with his 100% P & T PTSD award to 300% (not including some other issues they never rated )

Even an overlooked "K" award should definitely be appealed by a veteran.

SMC costs the VA big bucks.

So in my opinion, it is as likely as not that VA will try to get out of making proper SMC awards whenever they can and probably have done that to thousands of veterans in the past.

Many of our well paid vet reps are only to happy to see that you have gotten an award and reluctant to pursue it further in many cases-if the award is wrong- even though they know (sometimes they know) it should be appealed.

Besides it took them over 3 years after his death and 6 years after he filed his 1151 claim for them to adjudicate the claims I re opened in his behalf so how could he ask for SMC years after the VA put him on ice?

Edited May 31, 2011 by Berta

[Pete53]

I had to ask for it. In fact I believe that you have to ask for just about everything from the VA. That is why years after I was 100% Hadit and John999 helped me bet SMC-S

[WAC-Vet75]

PR, did you ever get a call back from NVLSP? I sent them an email, applicable regs with responses, but have not heard a thing from them so far.