diabetes Smc For 100% Plus 60%

[fisherman]

I applied for under agent orange my diabetes II for my service connection from Viet Nam service in the first part of August. I am taking metformin 500mg twice a day, and told to diet and exercise. Today Sept 27 I received a phone call from the VA making an appointment for next Tuesday Oct 2 2012 for C&P for my claim. I don't know what to make of this because I thought I would have to go threw a big process to get this done. In my claim I didn't ask for SMC at this time will they award this without asking? I asked the person who called if I needed blood work and she said no just bring my medicines I take. Today I went to that C&P and the guy told me this was a simple matter, VA only wanted to make sure I had Diabetes II, He ask if I had any medical information other than the VA and I said no. I also got a package from the regional office with forms I signed at the DVA for no more evidence decide my claim. I am completely at a loss about this, could someone help me to understand what I should expect. I am 100%PTSD 40%hearing 10% tinnitus plus the diabetes rating, will I qualify? Many thanks

Edited October 2, 2012 by fisherman

[Philip Rogers]

PR

While I have great respect for your opinion, Im not "getting" what you are posting. The 2 ways I know of getting SMC for housebound, is the "100 plus 60" statuatory HB and "housebound in fact".

I dont get what whether or not this is a "single" 100% (or combined) has anything to do with it.

Anytime a claimant is rated 100% for a single condition, A&A and HB are inferred issues. This probably now includes any TDIU affected under the Peake(think it was Peake) decision. The court also included the ability to regularly leave the house to attend work in the HB rules. By recently I mean the past 3-4 yrs.

pr

[broncovet]

So its inferred whenever there is a single 100% OR is it inferred when there is 100 plus 60?

I thought it was inferred when there was 100 plus 60, so I guess that is what I am not getting. Now that you put it that way, I think you are right..that inferral is triggered automatically at the "100 percent" threshold, not at the 100 plus 60.

Are you suggesting this is CUE when the VA fails to follow regulations and infer SMC with a single 100 percent evaluation?

I am not saying they have to AWARD SMC, but it would appear that they would either have to award SMC OR give a reasons and bases as to why this Vet, having been awarded a single 100% evaluation would NOT qualify for SMC?

(By the way, I was awarded a single 100%, and the Va did not INFER SMC, but instead went on a spiel about SMP (HOusebound). I think the SMP housebound reference in the decision was a "diversion" to "throw me off track".

[Lenkl]

I hope someone can help our family,

Our family put in for a increase for depression a year ago the VA gave a increase of 70% the reasons they did not go to the 100 are the main reasons we were there incompetent loud outbreaks impulse disorder are the reasons we went in. They said that is what it takes to get a 100% so here goes a NOD and God only knows how long this will take.

Here is a list of his ratings 100 complex seizure disorder dad was thrown from his gun jeep in Panama 70 depression associated with head trauma 50 headaches 40 disk herniation L5-S1 Neurological. Deficit right side 40 Neurological. Deficit left 40 Trigeminal neuralgia post traumatic 30 RT Facial nerve palsy 20 Bilateral 6th nerve palsies 20 hearing loss 20 right brachial plexus 20 the state rated it 70 right hip strain 20 herniated pulpous 20 tinnitus 10 complete alar collapse 10 left hip strain 10 broken teeth due to seizures 10 broken pelvic with plate and screws 10 now with all this the VA said they made a clear and unmistakeable error with the SMC rating they gave service connected Aid & Attendance between l&m we have put in for the housing grant because of the many falls moving from his power chair to the tub or bed while being helped by nurse or family member his DR stated he need someone with him 24/7 my question is what level SMC do we need and how do we put in for it. Also why would they turn the housing down .Thank You.

[Philip Rogers]

So its inferred whenever there is a single 100% OR is it inferred when there is 100 plus 60?

I thought it was inferred when there was 100 plus 60, so I guess that is what I am not getting. Now that you put it that way, I think you are right..that inferral is triggered automatically at the "100 percent" threshold, not at the 100 plus 60.

Are you suggesting this is CUE when the VA fails to follow regulations and infer SMC with a single 100 percent evaluation?

I am not saying they have to AWARD SMC, but it would appear that they would either have to award SMC OR give a reasons and bases as to why this Vet, having been awarded a single 100% evaluation would NOT qualify for SMC?

(By the way, I was awarded a single 100%, and the Va did not INFER SMC, but instead went on a spiel about SMP (HOusebound). I think the SMP housebound reference in the decision was a "diversion" to "throw me off track".

broncovet - when a claimant receives a 100% rating for a single disorder and the VA doesn't address the HB/A&A issue, in the decision, the claim is considered still open, and not a CUE, as it's not final. All the claimant needs to do is write the VA explaining that issue and requesting the appropriate SMC award. Now whether the VA will award it is another issue.

A 100+60 is an absolute award, not an inference, as the VA is required to award the SMC "s" award to those who qualify, period.

pr

[broncovet]

Lenkl

If you "start a new topic" you are more likely to get your question answered. I dont know the answer to your question but maybe others can help.

PR

So, if I understand what you are saying, when the VA awards a single 100% and does not address SMC, this is not CUE, but would actually amount to a "deemed deferral" (deferral sub silentio) of SMC since you said it would remain pending. This may be good for claimants, because then the "one year appeal clock" would not begin to run (but I am not sure if it would not begin to run on the whole decision or just the issue of SMC) If the appeal clock does not start, then, theoretically, the Vetran could file a timely filed NOD 20 years later.

Also, it is not clear that "100 plus 60" is always an "absolute award". For example, in the case of IU...was the Veteran unemployable because of his PTSD, at 30 percent, his DDD at 70%, neither,or both? Bradley vs Peake makes it clear the Veteran may have multiple disabilities, some, all or none of which may or may not contribritute to unemployability.

[Philip Rogers]

Lenkl

If you "start a new topic" you are more likely to get your question answered. I dont know the answer to your question but maybe others can help.

PR

So, if I understand what you are saying, when the VA awards a single 100% and does not address SMC, this is not CUE, but would actually amount to a "deemed deferral" (deferral sub silentio) of SMC since you said it would remain pending. This may be good for claimants, because then the "one year appeal clock" would not begin to run (but I am not sure if it would not begin to run on the whole decision or just the issue of SMC) If the appeal clock does not start, then, theoretically, the Vetran could file a timely filed NOD 20 years later.

Also, it is not clear that "100 plus 60" is always an "absolute award". For example, in the case of IU...was the Veteran unemployable because of his PTSD, at 30 percent, his DDD at 70%, neither,or both? Bradley vs Peake makes it clear the Veteran may have multiple disabilities, some, all or none of which may or may not contribritute to unemployability.

I suppose you could call it a deemed deferral but I just call it a grave procedural error. Anyway the claim remains open and can be addressed at anytime, by the claimant, w/no penalty. In my mind, the issue of 100+60 is an absolute, because I didn't include TDIU in that statement. I stated 100+60 not total plus 60, as in TDIU. I haven't read the Peake case lately. You can find more on the inferred issue if you search the COVA/CAVC cases, way back in the late 80's, early 90's. just sayin . . .

pr