hypertension I Just Found Out Have Additional Disabilities That Should Qualify Me For Smc "s" Award

[john999]

Berta

If I had gotten a slightly higher rating after I got TDIU I don't think I would have gotten "S". I was rated at 90%. If I had hit the 100% level I would have not gotten S because my 100% would have been a combination. My 90% is a combination. I had TDIU plus one disability rated 60%, so I fit the profile exactly. I think I just got lucky. The whole issue is murky.

[Philip Rogers]

Berta - 1114(s) is 38 US Code, not CFR but I'm sure that was just an oversight by you. Here's 1114(s):

(s) If the veteran has a service-connected disability rated as total, and

(1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or,

(2) by reason of such veteran’s service-connected disability or disabilities, is permanently housebound, then the monthly compensation shall be $2,993. For the purpose of this subsection, the requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to such veteran’s house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran’s lifetime.

Please see s(1) which states: "has additional service-connected disability or disabilities independently ratable at 60 percent or more, or,"That includes a combination of disabilities. My point was their math. I've seen other cases where the math is regular math and they are getting paid the additional SMC "S".

pr

The way I understand 1114 (s) 38 CFR is that

the 60% must be the rating for one single independent SC disability, plus 100%SC or TDIU for separate disabilities.I have never seen the 10s combined (although those 10s could possibly warrant some K awards.

I think this is a way vets get screwed if their TDIU might well possibly be 100% with other disabilities all lumped together.

What I mean is this-

say the VA awarded a vet 30% PTSD and 60% IHD but say the award is a TDIU award.

What if the PTSD itself might have raised to a 100% SC level in time ? Could VA say the claim for 100% PTSD is moot issue because they already get TDIU or would VA then award 100% for PTSD plus the 60% IHD as the SMC "S" award?

I think many vets with TDIU never attempt to challenge what the actual TDIU ratings were even if they get worse.

[john999]

Phil

I think you should file for "S". I bet you could squeeze another AO secondary condition out of your disabilites. I am acutally way over TDIU plus 60% since I have one 60% and five 10% ratings over and above TDIU. You might even try to get "S" for acutally being housebound. Did the VA consider you for HB when they granted you 100% schedular for PTSD?

[Philip Rogers]

John, I have an appeal, on the HB, that is going on 21 yrs. I am 100% for PTSD, and requested an inferred HB, which they denied and it has been under appeal for 21 yrs. The court remaned it about 2-3 yrs ago. My current rating is 100%, + one 20% and four 10%'s. They stated that that only equals 50%. I disagree and plan to NOD their denial. Personally, I think they are lying to me. Anyone have any thoughts???

Thanks,

pr

Phil

I think you should file for "S". I bet you could squeeze another AO secondary condition out of your disabilites. I am acutally way over TDIU plus 60% since I have one 60% and five 10% ratings over and above TDIU. You might even try to get "S" for acutally being housebound. Did the VA consider you for HB when they granted you 100% schedular for PTSD?

[Berta]

I respectfully differ with you Philip:

http://law.justia.com/us/cfr/title38/38-1.0.1.1.4.2.65.142.html

The SMC regs are found in 38 USC under 1114 and found in 38 CFR under 3.350 and both of these citations are found within the VBM, 2010 Edition-pages 338 to 360 regarding SMC .

I Do see your point and have never understood why the VA added the ies" to this:

disability or disabilities independently ratable at 60 percent or more, as it seems to suggest to me they mean more than one 60% disability but on the other hand-it could mean a total of SCs equaling the 60%.

I would continue to fight this if I were you- because it just doesn't make sense.

"I've seen other cases where the math is regular math and they are getting paid the additional SMC "S"."

Are these BVA cases?

Although BVA cases are disregarded as evidence when a vet tries to use a similiar case as theirs to medically support their claim- you could raise a legal issue with them-if you have documentation of how the VA did award S using normal math in other decisions -as this is not a medical issue, it is an administrative issue if two or more raters use different types of math.

I have certainly used BVA cases that regarded legal issues or non medical issues to enhance points I have made in claims.I dont send the whole BVA case, I give hyperlink to them and then a copy and past excerpt from the BVA case.

That is how I got onto the Nehmer list.

I would continue this fight if I were you. I think the SMC regulations in 38 USC and CFR should be re -written because they are quite complex and the regs do not contain the many SMC combos that NVLSP has listed in the VBM.

I dont have permission from NVLSP to post more than brief VBM excerpts but these combos are so intricate that I doubt if any reps really understand them.

[rakkwarrior]

The PTSD Rating cites dates which discuss from X date to X date. There is no CUE here, and while an S award may be forthcoming based on filing claims for.increase in the diabetes related condition, you would have to combine these independently under 4.25 to combine to 60 to get the S. Berta is exactly correct. SMC S awards are pretty straight forward based on disabilities independently ratable in excess of 60 percent.

In your case, SMC S could also be awarded on a factual basis consistent with 38 CFR 3.352. "incapacity, physical or mental, which requires care for assistance on a regular basis to protect the claimant from dangers or hazards incident to his or her daily environment." Which should be the basis for your appeal.

Mind you, this is a medical determination which will require support from your treating doctors.

Edited March 18, 2011 by rakkwarrior