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Bradley V Peake? Smc S

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For Anyone attempting to use CUE regarding a past unappealed SMC decision (whether they can use Bradley or not)this is a good read.19 years of retro .

"ORDER

CUE in a December 1975 and subsequent rating decisions warrants

assignment of an effective date of December 16, 1975, for special

monthly compensation at a rate equal to that provided for by

38 U.S.C.A. § 1114(n); the appeal is granted to this extent, subject

to the law and regulations concerning the award of monetary benefits."

http://www4.va.gov/vetapp94/files1/9405865.txt

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And for survivors,this is a successful CUE claim regarding SMC as accrued benefits : (similiar in some ways to my claim.Although CUEs are legal issues, the medical evidence of record at time of this veteran's death warranted the higher level of SMC to be paid to the spouse as an accrued benefit.

ORDER

A February 15, 1997, rating decision, which denied

entitlement to a higher level of special monthly compensation

based on the need for aid & attendance under 38 U.S.C.A.

§ 1114®(2), for accrued benefits purposes, was clearly and

unmistakably erroneous.

http://www4.va.gov/vetapp09/files1/0900129.txt

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I have another question, and wonder if anyone else has posed this.....

38 U.S.C. § 1114(s) provides that SMC at the (s) rate will be granted if a 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) is permanently housebound by reason of a service-connected disability or disabilities

Looking at the language used, it is stating disability or disabilities INDEPENDENTLY ratable at 60% or more, seems to me not to be a combined rating of 60%, but rather taking the sum of the additional disabilities to be 60%. Is there anything that states the additional 60% is from a combined rating? I've noticed that many times the regulations state "combined rating", whereas this specifically states independently ratable.

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My take is that they mean by "independent" as not the same disability that the 100% or TDIU is for.

My CUE claim is based on that.

SC for PTSD 100% P & T

then 100% CVA from DMII, and 60 staged to 100% for AO IHD.

The additional disabilities are 'independent' of the PTSD and not related in any way to it.Does anyone else see it this way?

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I take it to mean that there is an additional 60% rating (besides the total rating) that is either 60% or more, or is additional ratings that combined equal 60% or more. I'm dealing w/this now. I feel the 60% is not totaled thru the combined ratings chart, as the claimant is already 100% and therefore fully disabled. To be using the ratings chart for this 60% would be penalizing the claimant twice for their disability. I'll be NOD(ing) their denial.

This can be clarified if someone can find the section of M21 that deals with SMC awards.

pr

Edited by Philip Rogers
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Since VA regulations already state against pyramiding, a disability rated at 100% (rated or TDIU) would be separate (or independent) of any other disability rating. You could not get 100% for MS, then get rated separately, for LOU of lower extremities due to MS, but you can be rated separately for each disability MS causes.

The reasoning for the combination chart is, because a Veteran can not be rated more than 100% (0 percent efficiency), hence SMC. Once 0% efficiency is established, to combine additional ratings would be penalizing the Veteran. The combined rating chart only goes to 99%, and once that is reached how can they justify reusing it for additional disabilities?

Reading the following, it clearly states, "cite disability rated 100% under regular combined evaluation" for the first part of the requirement, yet it only states "cite disability(ies) establishing entitlement", not "cite disability(ies) establishing entitlement under regular combined evaluations". The wording "and additional service-connected disability(ies) of _____, INDEPENDENDLY ratable at 60 percent or more....." clearly states ADDITIONAL, which would prevent pyramiding. Independently ratable at 60%, but it does not state "under regular combined evaluations", may well establish a CUE for Veterans rated 100%, plus, for a few SMC ratings!

SPECIAL MONTHLY COMPENSATION UNDER 38 U.S.C. 1114(s) - 38 CFR 3.350(i)

TOTAL PLUS 60% OR HOUSEBOUND

SMC Code 48

S-1 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of (*) rated 100 percent and additional service-connected disability(ies) of (**) , independently ratable at 60 percent or more from (date) .

S-2 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 CFR 3.350(i) on account of (*) rated 100 percent and being housebound from (date) .

*Cite disability rated 100 percent under regular combined evaluation.

**Cite disability(ies) establishing entitlement.

SPECIAL MONTHLY COMPENSATION UNDER 38 U.S.C. 1114(p) -

38 CFR 3.350(f)(3), (f)(4), AND (f)(5)

ADDITIONAL INDEPENDENT 50 OR 100 PERCENT DISABILITY OR DISABILITIES OR

LOSS OR LOSS OF USE OF THREE EXTREMITIES

SMC Code - #

P-1 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (p) and 38 CFR 3.350(f)(3) at the rate intermediate between subsection (*) and subsection (*) (or) (equal to subsection (*)) on account of (**) with additional disability(ies), (**) independently ratable at 50 percent or more from (date) .

P-2 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (p) and 38 CFR 3.350(f)(4) at the rate intermediate between subsection (*) and subsection (*) (or) (equal to subsection (*)) on account of (**) with additional disability, (**) independently ratable at 100 percent from

(date) .

P-3 Entitled to special monthly compensation under 38 U.S.C. 1114, subsection (p) and 38 CFR 3.350(f)(5) at the next higher rate or intermediate rate of subsection (*) due to the loss of three extremities from (date) .

*Cite applicable subsection(s) of 38 U.S.C. 1114. **Cite entitling disability or disabilities.

#Use applicable codes from section VII.

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