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Bva Denied My Smc For 100% + 60% "s" Award . . .

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Also, I don't remember reading this part on the issue of SMC/S.

(i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s).

The special monthly compensation provided by 38

U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and,

(I BELIEVE BRADLY V PEAKE ADDED IU)

(1) Has additional service-connected

disability or disabilities independently

ratable at 60 percent, separate and distinct from the 100 percent service-connected disability

and involving different anatomical segments or bodily systems, or

http://edocket.access.gpo.gov/cfr_2011/julqtr/pdf/38cfr3.351.pdf

What's the feedback on this ?

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  • HadIt.com Elder
Teac We have been over this before. Under Bradley V Peake the decision stated that a Vet who is considered IU is also eligible to be awarded SMC S. You do not have to have a 100 percent schedular rating, This is not Hadit's first go around with this issue. The main question here is why the VA uses the combined rating schedule over and above 100 percent. Once a Veteran reaches IU or 100 percent their residual should drop to zero. This is just another scheme the VA uses to Rip Off the veteran population. On the other hand this issue will be decided at the court level once and for all. If you really want a breakdown of Bradley V Peake, I suggest you listen to the Next Bergmann-Moore SVR show. We will break this case down and They will explain it in great detail. Basser

JB, You nailed it!! ~Wings

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Carlie, Bradly (dealing with issues of TDIU) is not applicable to to PR's decision as he is already 100% +60%.

Wings,

I agree TDIU is not an issue here, but as to being 100 + 60... that is a matter of opinion since Philip's 60% only combines to 50% and there is nothing in any va law, rules or regulation that states to drop the residuals to 0 once a veteran is rated 100% and to add the additional disabilities instead of using the combined rating tables. I sincerely hope that the issue is decded in his favor, but I just don't think the BVA or Court of Veteran Appeals will agree with this newest idea/arguement.

Edited by Teac
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I think I was the one who first brought up Bradley in this thread - so I will take the heat on that-

and actually we have beaten that dog to death here already in past discussions on this case.

Since Carrie is doing a show this Wednesday , whether on Bradley V Peake or SMC in general it would be good to pose the question to her as to the additional 60 % disabilities and the proper way VA is to consider them regarding SMC S.

However I need to comment on your actual decision Philip because

I was hoping the VA would have awarded a higher level of SMC posthmously when they awarded my CUE claim last month.

The evidence they used certainly made enough sense that I can live with it but then again I might appeal the award....

They awarded S under Section 1151 but didnt go to a higher level with rationale such as "the veteran can button his clothes" TRUE I told them that.But he could not tie his shoes.They overlooked that.

Althugh they granted on upper and lower extremity weakness, they failed to consider how dificult it was for him to even bend over.

He also could not tell hot from cold due to the 1151 stroke ,requiring me to check his shower water and also stay in the bathroom with him so he didnt fall while in the shower due to his muscular weaknesses.He even would slip sitting on the shower chair due to SC balance problems.

When the VA put him into the 21 day inhouse program, he got lost on a field trip, due his his multiple SCs and didnt shower for 21 days because he couldnt tell hot from cold and they have no shower accomodations like the shower seat and metal hand handles he needed.

I was present when a VA doctor asked him hw far he could walk.

VA told me he would never walk again so any type of walking was quite an accomplishment for him and he learned to walk again himself with minimal VA rehab.

The C & P doc said Can you walk 3-4 blocks? and he said Yes and missed my gesture that this was wrong. I should have spoken up. He could walk only about 200 feet without extreme fatigue and leg weakness.

I asked him why he said Yes and he said he could not recall what a 'block' was due to his SC memory loss.We live in the country-no 'blocks' here.

He was a danger to himself and to others. They ignored evidence regarding that.

In any event my long point here is, the S award requires proof of being housebound.

In your case, they could have overlooked evidence that might have altered their opinion. They sure did in my claim. I just noticed more mintes ago because I wanted to see exactly how they determined the S award posthmously.

Has anyone ever diagnosed you with agoraphobia? Did VA rely on past information but not consider your current status might require S even if the older stuff didnt?

I agree that this is a case for a lawyer. And Carrie ,as a lawyer herself, might be able to clarify the 60% Issue for SMC S on the next SVR show.

Edited by Berta
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  • HadIt.com Elder

Wings, I agree TDIU is not an issue here, but as to being 100 + 60... that is a matter of opinion since Philip's 60% only combines to 50% and there is nothing in any va law, rules or regulation that states to drop the residuals to 0 once a veteran is rated 100% and to add the additional disabilities instead of using the combined rating tables. I sincerely hope that the issue is decded in his favor, but I just don't think the BVA or Court of Veteran Appeals will agree with this newest idea/arguement.

x

x

x

I have to read the files PR has uploaded, because as read 38 CFR 3.351, it is an EITHER OR regulation: either 100% plus 60% Or "substantially housebound" --you do not need to meet a + b, just one or the other. ~Wings

P.S. I would claim entitlement under 38 CFR 3.351(d)(2), holding that the plain meaning "substantially confined" does not require 100% confinement. I would cite Roberson v. Principi (Fed. Cir. No. 00-7009. May 29, 2001), "Roberson asserts that the Court of Appeals for Veterans Claims misconstruedsubstantially gainful occupation” to mean “100% unemployable.” Roberson bases his allegation on the court's statement that “there was sufficient evidence of record at the time of the RO's January 1984 decision to reasonably conclude that the veteran was not 100% unemployable.”  Roberson v. West, No. 97-1971, slip op. at 6. Roberson asserts that the plain language of the regulation does not require the veteran to show 100 percent unemployability in order to prove that he cannot “follow substantially gainful occupation.”   We agree."

38 CFR 3.351 Special monthly dependency

and indemnity compensation, death

compensation, pension and spouse’s

compensation ratings.

(d) Housebound, or permanent and total

plus 60 percent; disability pension. The

rate of pension payable to a veteran

who is entitled to pension under 38

U.S.C. 1521 and who is not in need of

regular aid and attendance shall be as

prescribed in 38 U.S.C. 1521(e) if, in ad-dition to having a single permanent

disability rated 100 percent disabling

under the Schedule for Rating Disabil-ities (not including ratings based upon

unemployability under § 4.17 of this

chapter) the veteran:

(1) Has additional disability or dis-abilities independently ratable at 60

percent or more, separate and distinct

from the permanent disability rated as

100 percent disabling and involving dif-ferent anatomical segments or bodily

systems,

or

(2) Is ‘‘permanently housebound’’ by

reason of disability or disabilities. This

requirement is met when the veteran is

substantially confined to his or her

dwelling and the immediate premises

or, if institutionalized, to the ward or

clinical area, and it is reasonably certain that the disability or disabilities

and resultant confinement will continue throughout his or her lifetime.

(Authority: 38 U.S.C. 1502(c ) 1521(e))

Edited by Wings
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Carlie, Bradly (dealing with issues of TDIU) is not applicable to to PR's decision as he is already 100% +60%.

Yes, I'm well aware pr's claim for SMC/S has nothing to do with IU.

I made no implication that it did, the relevance of what I posted is found in the underlined.

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