ptsd Am I Eligible Or Smc (S) Now?

[nwlivewire]

First time poster and have a question about SMC (S)

I have been told both "YES!" and "NO!" as to my eligibility to apply.

Can you please help me by providing your answer? And,how you came to logically/legally arrived at your answer?

My situation is as follows:

Army PDRL discharge - APR 2012 - 70% - IDES process (VA/Army both at once)

ARMY RATED ISSUES:(ARMY USED VASRD %)

1. LOWER BACK = 40%

2. R. SHOULDER = 30%

3. NECK = 20%

40 + 30 + 20 = 70%

VA FINALIZED IDES CLAIM - JUN 2012 - RETRO TO APR 2012 = 100% P&T

VA RATED ISSUES

1. PTSD = 70%

2. BLADDER = 60%

3. LOWER BACK = 40%

4. R. SHOULDER = 30%

5. NECK = 20%

6. TINNITUS = 10%

AT THAT TIME, VA "DEFERRED" 3 ISSUES FOR FURTHER ASSESSMENT, BUT ALLOWED THIS 100% P&T RATING/ISSUES TO PROCEED

70 + 60 + 40 +30+ 20 + 10 = 100%

SEPTEMBER 2013, VA FURTHER AWARDS RATINGS FOR THREE "DEFERRED" ISSUES - AND, RETRO'S THEM BACK TO DATE OF ORIGINAL CLAIM ABOVE - APR 2012

(THESE ISSUES WERE PART OF THE ORIGINAL CLAIM, but it took the VA another 15 months to decide and then rate them)

THESE VA RATED ISSUES ARE:

1. ASTHMA = 30%

2. R. KNEE = 10%

3. L. ANKLE = 10%

********************

So am I eligible to apply for SMC (S)??????

Or any other code???

Thank-you very much for your time!

V/R,

nwlivewire

[Philip Rogers]

Okay. I think I see the problem. Bradley and Buie are on point here as they illustrate that the predicate for TDIU can metamorphose as additional ratings accrue. The sticky point that might queer the deal is simple. If the predicate for the SSI/SSD was TWO items rather than one stand-alone condition, VA will say you miss the SMC S boat because one individual condition, solely by itself, is not the predicate for the TDIU.

I don’t know what order your ratings were awarded but VA cannot use the SSI/SSD records to the exclusion of all else as their rationale for saying “Well. The reason he got SSI is he had A and B wrong with him.” VA is not beholden to SSI law and they reiterate it all the time. Their ratings are all that matter. If the hubster has a 70% and it renders him unemployable, that should be the lynchpin for TDIU. As such, any and all other conditions , assuming they entail different body parts, can be assembled via 4.25 to achieve the extra 60%.

Here’s ammo to rebut it.

http://asknod.wordpress.com/2014/02/13/cavc-mekus-v-shinseki-idle-hands-are-the-devils-workshop/

Note VA opted out of the blue to revisit Mr. Mekus’ claim after it was already 10-year protected. This sets the precedence to reopen it and reassign the rating a new basis in fact. They failed the CUE test but that is immaterial here.

The important thing to note is that you can rearrange the order of the conditions (via Buie) to seek and obtain the highest and best rating possible (AB v. Brown 1995) and use the 70% for the TDIU if it can be proven that it, alone, causes unemployability in its own right.

Mekus stands for revisiting claims to revamp them to comport with the actual facts. It was a futile CUE exercise on VA’s part but gives you the legal right to do the same thing. Sauce for the goose, etc. Read Mekus carefully and use the cites they refer to in order to fashion your case.

The important thing about SMC-S and case law like Buie shows it makes no difference in the scheme of things which came first-the chicken or the egg. The end result is a compendium of ratings that have an aggregate value of over 160%. The order most advantageous to the Veteran should be the one employed by VA.

I also beg to disagree with PR on this. The 4.25 table, once you have accomplished the TDIU rating, is employed to add up the remaining ratings. If they add up to 60% or more and involve disparate body systems, you win the S. Period. SMC S is unique in that it is awarded at any time it can be proven you were entitled to it. It does not hinge on when you filed for it or if you suddenly qualified for it more recently. The effective date of the claim is the focal point for SMC-S. Thus, if you win an old claim and it provokes the SMC S retroactively, then that is the effective date for the S and there is no more case or controversy on the issue.

It is convoluted case law but I love judicial contretemps. There is so much VA law that is in flux. VA would have us believe it is all settled and we cannot disturb it but that is the essence of law. It is not immutable. Certain aspects of it are but we inhabit a nonadversarial judicial environment that encompasses a Veteran-friendly venue in which to present our claims. Every benefit that can be awarded must be awarded us. There is no room for them to interpret it. That is the job of the CAVC, the Fed. Circus and the Supremes. Your appeal simply will situate it in the proper venue for a nuanced, correct interpretation. I’m sure Willy Gunn didn’t go in thinking he was going to get his front teeth rearranged on Buie.

I look forward to seeing your name enshrined right up there with Gilbert, Mekus and Macklem.

Asknod - I don't believe I stated anything about TDIU and the ratings table. I was referring to being rated 100% and continuing to use the ratings table. Once you are 100% you are worth nothing or zero, so continuing to use the ratings table is immoral and probably illegal. I know better than to disagree w/you! :-)

pr

[Berta]

"If a vet is rated 100% for seizures and also 70% for TBI, do you think VA would grant SMC s ?"

That is a profound question.


"In this case, as discussed in greater detail by the December 2012 remand, the Board essentially found that clarification was required to address whether the claimed gastrointestinal and/or musculoskeletal disabilities were secondary to the Veteran's service-connected traumatic brain injury (TBI) and associated seizures (which is evaluated separate from the TBI)."

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp13/Files5/1341439.txt

I posted the excerpt to confirm the TBI is rated separately from Seizures.I didnt have time to find the actual TBI criteria.

.....meaning the seizures are associated with the TBI, but rated separately....I would think the 100% should be a P & T rating.

In that case the answer to your question appears to me to be Yes...but I think the VA would award SMC S under the Housebound criteria, rather than under the 100% plus 60% criteria. (and should probably be claimed that way)

For example, in my SMC CUE case, the VA awarded posthumously about 2 years of the HB SMC Saward, in addition to a proper rating of the 100% for the stroke..
The CUE I filed involved not only their violation of the mandate of SMC consideration but, they rated the CVA wrong in a 1998 decision, and never even had paid for that disability ,to me as an accrued benefit. In some cases 1151 money is paid separately from direct SC and in addition to it.),and also VA never properly considered or paid for the SMC S.

They could have just as easily awarded instead under his 100% SC PTSD P & T plus his independent 100% Section 1151 stroke.

But he was obviously housebound ,by the medical evidence, so they awarded SMC S under the HB regulations.

The cash for either type of SMC S is the same.

[Berta]

"In some cases 1151 money is paid separately from direct SC , and in addition to it."

My 2012 CUE award under 1151 was higher then my AO IHD award.

VA doesn't really want us to know that and many vet reps are unaware of that too.

One reason I put off filling my SMC CUE for a few years is that I didn't know of this unusual regulation and that my claim fit into it's unique criteria.

My vet rep didnt know about it at all.

Since then I posted it here somewhere in the 1151 forum.

[Berta]

sorry need to clarify that with this:

Basically it means, if you have TDIU or 100% SC and the buggers you with malpractyice, they cannot offset the 1151 rating to the 100% rating.

In my case they did pay the 1151 100% rating in addition to the 100% past accrued PTSD award to me in 2012 but their legal rationale was wrong and they forgot about 16 more months of 100% under 1151 cash.

My CUE is pending on that.

This might help someone out there.

If you have suffered a major stroke,whether SC or 1151 sc, the VA pays 100% for the first 6 months after stroke and then rates on the residuals.

If you have medical proof that the stroke is still a 100% disabling event, you need medical evidence of that fact, and I rattled off my extremely probative evidence for that somewhere in the CUE forum ....I think in my SMC CUE template.

I wonder how many vets have had a SC or 1151 stroke and except the 100% for 6 months, then never fight a lowball rating after that.

If they had a severe catastrophic stroke it is possible they cannot possibly handle an appeal so in that case I sure hope they have a PC literate spouse or a vet rep who is on the ball.

Some strokes are overcome to a great degree in the first 6 months after the stroke occurred.

I jopined the local VA stroke club when my husband had his stroke. There was not a single vet there who had been able to overcome catastrophic residuals.Most of them were nursing home patients due to their CVAs so we met in the VA Nursing home cafeteria.

[FormerMember]

<<During the past 10 yrs I've added 20, 10, 10, 10 and 10 but because of the combined ratings table they continue to deny, even though once you're 100%, they can't use the ratings table, as it's similar to double jeoprody(sp)>>

This was what I was referring to, PR, when I said I disagreed with you. The 4.25 table is employed to add everything up. If you have one single schedular rating, and then start adding more, the only vehicle with which to add them is the table. Thus, assuming you have a 100% schedular and the additional ones above, I see 100% plus 48 (50)%. [20 +10 = 28 +10 = 35 + 10= 42 + 10 = 48 which rounds up to 50%]. I expect VA would deny as it's less than the additional 60% needed. I do see VA use the disparate body systems rule as the vehicle to deny frequently. That's what they do. They're rude, argumentative, adversarial and generally always get things wrong. When you get into 3.350 (or 38 USC 1114) law , there has to be a metric to measure what's needed to attain S or the bump you get from an additional 50 or 100% rating that pushes you up one notch from L to M or M 1/2 et cetera.

Winning strictly on being "substantially housebound'' often boils down to a doctor making the appropriate pronouncement on the 21-2680 much like a nexus. It may require some reasoned logic. My attempt to get it in 2009 was denied. They used the argument that some of my problems were not service connected and thus not eligible for consideration. They conveniently overlooked my C&P exam saying "must avoid sun". I expect I'll win it but to do so means never throwing in the towel. I'm glad Mrs. Spotz sees fit to carry the flag forward. I hope you do as well. Each victory, however small, sets the stage for the next Veteran.

One last note. If you do not get S when you feel entitled to it, file for it. I did. Don't ever expect VA to arrive out of breath and say "Whoa, dude. You left some money on the table. Thank goodness we figured it out. Here's the check." When I win my S, I'll come back and tell you wonderful folks all about it. I hope it doesn't take another 20 years as my 100%P&T took.

Win or Die

a

[nwlivewire]

Thank-you One and All for this very informative discussion and for sharing your experiences.

Yep. I'm new to this "system" and I don't understand all the ins-and-outs of the postings.

I have copied and saved this thread to my computer so I can print it out and take it with me when I can get to see a VSO.

I have heard the one local VSO in my area is "iffy" at best. Just what I heard from a female Vietnam Vet who thought the VSO minimized her situation because of his gender perceptions/expectations.

Really??? I sure hope this is not the case with this VSO as this would be very uncool/unfair. Illegal I hope.

But I will be getting contact info this week and see what happens when I show up.

So any additional info any of my Brothers and Sisters have on this topic, please post as I am saving to my computer and will print and take with me.

Again, thank-you ALL so very much for responding so fully to this thread!

V/R,

nwlivewire