ptsd Does Filing For Smc S Jeapordize Rating?

[hedgey]

Hi, been out of the loop for a little while. Feels good to be typing again.

Here's the question/story:

My DH was rated 100% for PTSD back to 2011. He already had been rated 80% for a shoulder injury and multiple burn scars, so his rating is 100% + 80%.

His VSO never said anything about filing for SMC-S, and neither he nor I have been really able to hold onto the idea of filing any kind of claims (the whole process of getting rated for PTSD wrung us both out).

I kind of knew that he might be eligible for SMC-S, and after reading some posts here I'm kind of sure of it. I told him he should file, but he's afraid to.

Even though his 100% for PTSD is P&T (he has the military ID card, I have CHAMPVA, etc), he's afraid that "asking for more" will cause the VA to review and downgrade his PTSD rating.

Is that likely? He surely doesn't need the stress, and we surely don't need to lose the CHAMPVA and other benefits.

Any advice will be very much appreciated. Thank you!

[Philip Rogers]

It's not likely but the VA can review all the current ratings. Unless some of his claims are fraudulent I wouldn't worry about it. If he was rated 100% back in 2011 and had additional combined ratings equaling 80% and the VA didn't award SMC then the VA comitted a Grave Procedural Error or CUE, in failing to award SMC. There should have been some mention of SMC, in his decision letter, with a statement as to why they denied it. Probably just an oversight but please check and get back to us. Thanks!

pr

Edited March 12, 2013 by Philip Rogers

[Berta]

PR is right on the button.

I won my SMC CUE with this evidence:

1. M21-1 Part IV ,March 19 2004 ,Change under #.09 Issues and also

Erratum M21-1 Part IV under 3.10 (a) (b)

also

2.page 543 from the VBM NVLSP (2006 edition) (updated that page for the Nehmer RO in 2010)

(This page defines that SMC is a Statutory mandate whenever the veteran's disabilities warrant SMC consideration.) If the VA fails to consider any vet for SMC ,under SMC criteria, and their failure to consider would have warranted the veteran a monetary SMC benefit ,if they had considered the vet , then the VA has committed a CUE.

3. Three BVA decisions (I just put the links in the claim and quotes) as to the BVA's legal interpretation of the SMC mandate.

http://www.va.gov/vetapp02/files02/0206948

http://www.va.gov/vetapp01/files01/0109438

and

http://www.va.gov/vetapp04/files2/0410177

4. Copy of my husband's 100% P & T award letter for PTSD,

5. Copy of their defective rating sheets from 1997 and 1998 decision.

6. Copy of General Counsel Medical Opinion from 1997 fully warranting an 1151 award as well as supporting my CUE.

Edited March 12, 2013 by Berta

[john999]

I had to ask in writing for my SMC "S". I got two years retro. I don't think the VA looks at old decisions with the backlog staring them in the face. I would just send them a certified letter and ask for the "S". I don't think it will hurt your rating at all.

[hedgey]

Hi again,

Thanks everyone for your replies and advice. As always, HadIt members are my best friends.

I read through his decision letter 3 times and there is no mention at all of SMC. It talks about additional benefits, but include only things like dental, dependent educational assistance, ID card access, voc rehab, etc. Not a word or line about SMC.

How can we get a list of his disabilities and percentages? Is it on EBenefits somewhere? I called his VSO's office on Tuesday and they still haven't called back. We were at the VAMC Veterans Service Center on Wednesday, and the representative there had never heard of SMC, told us to contact a VSO.

It kind of sounds like the easiest route for DH to take would be to simply file a claim for it and ask for retro based on the fact that he became eligible on the date of his 100% rating. That sounds a lot easier than filing a CUE, especially since it's only going back a year and a half.

That's something DH can do without his VSO, right? Just a 4138?

Thanks again, john, Berta, and Phil Rogers

[broncovet]

I think VA and especially VSO's sometimes use fear tactics to prevent you from applying for all your benefits due, by putting the thought they could uncover something bad in your record that could result in a reduction.

While this is possible, remember that stare decisis prevents the VA from "readjuticating" your case, except in the case of CUE. If one decision maker made a determination on your case, while another decision maker could have a different result, they are not going to change it simply because of a difference of opinion. They have to "raise the Bar" and determine it is CUE, after a year. It would not be "undebatable" if one decision maker found in your favor, by defination.

This being said, if you have something in your file, for example, that shows you have an ineligible discharge, then, yes, you are in deep do do. But if there is simply a disagreement on your rating percentage...I doubt it.