Smc Do I Need To Submit Claim

[Thinkb4uSpeak]

Hello brother and sisters, I am new to the site so please be patience with me. I would like to know do I qualify for SMC and how do I apply. I truly need Aid and Attendance do to the fact my wife is unable to work full time due to my disabilities. I am 100% P&T.

70% major depressive disorder

40% Radiculopathy in left and right upper extremity

30% Migraine

30% Radiculopathy lower right extremity

20% Radiculopathy lower left extremity

20% degenerative joint disease neck

10% degenerative disk lower back

I have submitted claim for voc. rehab and vehicle allowance. Please help any advice or direction would be greatly appreciated.

[Berta]

If we can see the actual last 100% decision, perhaps we can help more.

If VA should have considered SMC, by medical evidence on your 100% award, and they didnt, they have committed a CUE.

My SMC CUE is in the CUE forum. ( 3 CUES in one decision , lack of proper consideration of SMC in 1998 decision ,Lack of proper rating on the 1998 decision I Cued, and lack of proper percentages.)

Here are a few excerpts from my claim and some of the evidence I used.:.

"1. VA states : “The claim specifies the factual or legal error”….etc

As stated before to VARO, the VA (38 CFR 1114 et al and M21-1) will consider SMC entitlement for any claim that has SMC potential. The veteran, Mr. Simmons, was denied proper application of this basic VA regulation although he fully satisfied the conditions for consideration. Posthumous rating decisions after his 1994 death failed to extend proper consideration of SMC. I have enclosed as Exhibit A, the M21-1 SMC
Criteria and refer you specifically to Paragraph 8.13:

b. “If the evidence demonstrates disability meeting the criteria for A & A or housebound benefits, entitlement must be established; failure to do so would constitute
clear and unmistakable error."

The veteran was 100% SC due to PTSD and also 100% due to disabilities under Section 1151. Obviously that entailed consideration for the “S” SMC award. I

The veteran had been declared totally disabled by the SSA for PTSD as of Oct, 1, 1991 as well as totally and independently disabled by the major CVA he had on August 9, 1992. He had two separate award letters from the SSA.

The veteran , per VA case law, with two independent disabilities, each at 100%, one being direct service connection and the other incurred under Section 1151, fully was eligible for proper SMC consideration.

The enclosed Office of General Counsel Pres Op ( # 30-97) Exhibit C, regards a NSC veterans fully eligible for and granted SMC. Exhibit C. Also the following BVA decisions reflect Section 1151 awards and also the awards of SMC:"

(I left the links off here...BVA cases are only good when they confirm a legal principle and I had a list supporting the legal principle of my CUE)


and I also added a copy of part of a page from NVLSP that states that SMC is mandated by statute in every situation where the evidence indicates it should be considered..

The VA in one of many of their futile attemopts to deny me, stated that the veteran did not request SMC.

NO veteran should need to request SMC. It is supposed to be an inferred issue whenever the documented medical evidence suggests it should be considered.

If you can scan their decision as to the statement they made about SMC ( or why they didnt consider it) we can see if they committed a CUE.

The Rating sheet would help as well.

Please cover your C file number, name, address etc prior to scanning and attaching it here.

VA granted the CUE in 2012 and made a posthumous SMC Housebound retroactive accrued award to me and also properly rated and paid for his 1151 CVA at 100%.( 20 years after the CVA happened)

[Thinkb4uSpeak]

Thank you for the advice it really helps. I have to admit I am still a little confused. I will be scanning my rating sheet shortly. I never applied for SMC so I don't think I have a letter why it wasn't considered.

[VetlawUS]

The VA is required to consider SMC if they grant a "total and permanent" 100% rating.

If they do not consider it - DO NOT FILE A CUE CLAIM (unless you have no other legal recourse ... i.e., your appeals are final, and you have no ability to reopen). A CUE Claim should be a claim of last resort when there are no options left.

Instead, if you are within the time to file an appeal (1 year from the Ratings Decision) file a Notice of Disagreement appealing the denial of SMC in the Ratings Decision that granted a 100% P&T rating.

If you are not within that time, file a claim to Reopen to consider SMC...wait til you get the SMC, then file a NOD challenging the effective date using the argument that the VA should have inferred SMC from a grant of 100% permanent and total disability. Only after losing all those appeals do I think it wise to file a CUE claim.

Here are a few posts from the Veterans Law Blog to help out:

Read about CUE Claims - and what makes them difficult and dangerous - here.

Here is some basic information about what goes into a Notice of Disagreement.

Failure to decide "inferred claims" like SMC is one of the Top 5 Most common errors that the BVA makes.

Hope the answer, and the links, help.

Chris

[john999]

I was entitled to SMC "housebound" and I had to file a CUE to get it. I got it pretty fast since it was obvious, but if I had not claimed it officially I would never have gotten it.

When you get the 100% rating but no written consideration of SMC and you call them on it they may say that they did consider it, but did not note it on your decision. This is BS. If they did not note it in your rating they did not consider it. Even if they note it and then deny it I would appeal. I filed a CUE claim because I was awarded total in 2001 and got an extra 60% in 2008. The VA did not grant "HB" even though Bradley v Peake said they had to, so I filed a claim asking for HB. The VA said it was a valid CUE and granted the HB back to 2008. I think I filed in 2010-11 because someone brought it up here. If you are TDIU and have an extra 60% unrelated to the TDIU claim then you are entitled to HB. This is old news to many, but probably not to all.

John

[Thinkb4uSpeak]

Thank you all for the replies. VetlawUS that is exactly what I needed to know and will move forward and file a Notice of Disagreement. Happy to hear you got yours John999 I hope am get the same response.

[Thinkb4uSpeak]

Do I need to request or mention aid and attendance when submitting the NOD. John999 I saw you request hb. That's kind of why I'm asking. Its not old news to me I am just learning about all the different benefits available.

[JoeB0401]

SMC is for very specific "physical" losses such as blindness, bilateral amputations, use of creative organ, arm/leg amputation, etc. To qualify for SMC, one of those disabilities mentioned must have a 100% PT SERVICE CONNECTED disability and a second, SERVICE CONNECTED disability rated at 60% or more that is UNRELATED to the diagnosis of the first/100% PT disability. Example, a 'scheduler' rating to achieve the 100% PT rating would not = the required 100% PT rating unless it was for a SINGULAR systemic event like RA or MS. If you think you qualify, I recommend you take your ratings to the nearest VSO and have them assess your decision/award. SMC is an additional award for the most crippled and dire injured combat veterans and not many qualify.

However the Aid & Attendance/Housebound benefit can be granted without the stringent requirements of SMC and this (A&A/HB) award can also be granted for a veteran's spouse who requires constant care. You will need to undergo a Housebound Exam by your local VA. Your VSO can get this scheduled for you. You should plan to bring any doctors' notes that support you/spouse's need to require help with bathing, driving, dressing, managing meds and other routine "ADLs" (Activities of Daily Living) functions.

[carlie]

SMC is for very specific "physical" losses such as blindness, bilateral amputations, use of creative organ, arm/leg amputation, etc. To qualify for SMC, one of those disabilities mentioned must have a 100% PT SERVICE CONNECTED disability and a second, SERVICE CONNECTED disability rated at 60% or more that is UNRELATED to the diagnosis of the first/100% PT disability. Example, a 'scheduler' rating to achieve the 100% PT rating would not = the required 100% PT rating unless it was for a SINGULAR systemic event like RA or MS. If you think you qualify, I recommend you take your ratings to the nearest VSO and have them assess your decision/award. SMC is an additional award for the most crippled and dire injured combat veterans and not many qualify.

However the Aid & Attendance/Housebound benefit can be granted without the stringent requirements of SMC and this (A&A/HB) award can also be granted for a veteran's spouse who requires constant care. You will need to undergo a Housebound Exam by your local VA. Your VSO can get this scheduled for you. You should plan to bring any doctors' notes that support you/spouse's need to require help with bathing, driving, dressing, managing meds and other routine "ADLs" (Activities of Daily Living) functions.

I have some disagreements with everything above in red because it depends on what the SMC is for.

SMC certainly is not in any way just, an additional award for the most crippled and dire injured combat veterans

and, there are certainly MANY, MANY vets, that qualify for SMC.

Many times there is already so much evidence in the claims file that an exam for housebound is not needed.

Many times the veteran already meets the regs for 100 + 60 and no exam at all is needed.

jmho

[Thinkb4uSpeak]

I really appreciate all the help. The last couple of post are exactly what I needed to know.

Thank all of you.

I will be going for the Aid Attendance once I read what I need to do.

[Chuck75]

There is also a clause in the SMC rules that allows the VA to award SMC when the total impact of the veterans disabilities is of such severity

that the veteran is incapable - - -. The problem is that the VA falls back on the schedular ratings, and seldom uses other paths to SMC.

Remember that the VA often sees things as monochrome, with no shades of grey.

[lotzaspotz]

SMC is for very specific "physical" losses such as blindness, bilateral amputations, use of creative organ, arm/leg amputation, etc. To qualify for SMC, one of those disabilities mentioned must have a 100% PT SERVICE CONNECTED disability and a second, SERVICE CONNECTED disability rated at 60% or more that is UNRELATED to the diagnosis of the first/100% PT disability. Example, a 'scheduler' rating to achieve the 100% PT rating would not = the required 100% PT rating unless it was for a SINGULAR systemic event like RA or MS.

Not necessarily so. I believe the NVLSP disagrees with that interpretation, based on Bradley v. Peake, re. Statutory authority for "s" status (qualifying based strictly on ratings, not being literally housebound). My husband' s appeal is at the Board right now appealing that interpretation, and I fully expect they'll deny, so it will be on to the Court and we'll see how this shakes out.

[GlassRose1500]

This has been a really helpful thread for me as well, Thanks!!! But now the challenge will be pulling together the right words for the NOD (I'm going the NOD route because the notification date of my 90% TDIU was less than a year ago).

Any ideas about where I might find language to support my NOD (in particular the VA's obligation to adjudicate A&A, explicitly covered in claim, and additional SMC, implied but not explicitly addressed in claim)?

70% MDD (New)

40% Spine (up from 20%)

30% Migraines (New)

20% LRE Radiculopathy (up from 10%) bilateral factor)

10% R Knee Arthritis (New - bilateral factor)

10% L Knee Arthritis (New - bilateral factor)

= 92% rounded down to 90% but TDIU

Dropped R Knee Pain (was 10%)

Dropped R Knee Instability (was 10%)

Dropped L Knee Pain (was 10%)

Dropped L Knee Instability (was 10%)

No language about LLE Radiculopathy or A&A, which were clearly addressed in claim

There is an error in the findings language (a discrepency between the number of migraines per month - in one place (where they review the medical findings and rationale for rating) the frequency is documented correctly, and in another (the rating language itself), it is not documented correctly, which should lead to an increase in migraine percentage.

There is clear and compelling evidence from the file at that time and even more clear and compelling evidence since that the reduction in knee percentages is bs. If anything the arthritis should have been added, not put in place of the 10+10+bilaterally for pain and loss of stability per knee.

But I don't know that I'll tackle either of those in my NOD (I'm already being paid at the 100% rate) ... but rather just go after the No Decision on A&A (explicitely requested) and the No Decision on inferred SMC. I'm going to have to search for the location of the code or precedent case that says they are obligated to adjudicate SMC under these conditions (cause my DAV guy was no help there - he said they were not required to adjudicate anything that isn't explicitely named in the claim and refused to discuss it further). I have solid evidence, including a VA provided home health aid for three days per week to cover when my husband is not home.

Edited August 18, 2014 by GlassRose1500 (see edit history)

[Rob402]

The VA is required to consider SMC if they grant a "total and permanent" 100% rating.

then file a NOD challenging the effective date using the argument that the VA should have inferred SMC from a grant of 100% permanent and total disability.

Chris, could you please point me to the sources for the above suggestions, whether that be code, case law, or both. Would be much appreciated.

[carlie]

This has been a really helpful thread for me as well, Thanks!!! But now the challenge will be pulling together the right words for the NOD (I'm going the NOD route because the notification date of my 90% TDIU was less than a year ago).

Any ideas about where I might find language to support my NOD (in particular the VA's obligation to adjudicate A&A, explicitly covered in claim, and additional SMC, implied but not explicitly addressed in claim)?

70% MDD (New)

40% Spine (up from 20%)

30% Migraines (New)

20% LRE Radiculopathy (up from 10%) bilateral factor)

10% R Knee Arthritis (New - bilateral factor)

10% L Knee Arthritis (New - bilateral factor)

= 92% rounded down to 90% but TDIU

Dropped R Knee Pain (was 10%)

Dropped R Knee Instability (was 10%)

Dropped L Knee Pain (was 10%)

Dropped L Knee Instability (was 10%)

No language about LLE Radiculopathy or A&A, which were clearly addressed in claim

There is an error in the findings language (a discrepency between the number of migraines per month - in one place (where they review the medical findings and rationale for rating) the frequency is documented correctly, and in another (the rating language itself), it is not documented correctly, which should lead to an increase in migraine percentage.

There is clear and compelling evidence from the file at that time and even more clear and compelling evidence since that the reduction in knee percentages is bs. If anything the arthritis should have been added, not put in place of the 10+10+bilaterally for pain and loss of stability per knee.

But I don't know that I'll tackle either of those in my NOD (I'm already being paid at the 100% rate) ... but rather just go after the No Decision on A&A (explicitely requested) and the No Decision on inferred SMC. I'm going to have to search for the location of the code or precedent case that says they are obligated to adjudicate SMC under these conditions (cause my DAV guy was no help there - he said they were not required to adjudicate anything that isn't explicitely named in the claim and refused to discuss it further). I have solid evidence, including a VA provided home health aid for three days per week to cover when my husband is not home.

Rose,

What SC'd condition/s do you feel will make you eligible for A&A ?

[GlassRose1500]

I receive A&A services (not compensation) the 3 days per week my husband is not home for SC spine, knee, migraine and medication side effect related impact to ambulation, food preparation, and basic adls for which I require assistance or I could not perform. The VA HBPC occupational therapist performed an evaluation detailing areas I needs assistance with and cited the SC conditions as the cause.

Thanks for asking :)

p.s. I shouldn't have posted this here, so I created a new post to reframe the question.

Edited September 4, 2014 by GlassRose1500 (see edit history)

[Pete53]

It has been my experience that the VARO rarely looks at SMC unless you request them to do it.

[Rotor Head]

Keep in mind that a single 100% rating is generally a prerequisite for SMC's. (SMC K and SMC S based upon Bradley v Peake are exclusions) It does not mean that you can't be awarded with a combined rating of 100%. However, it is an exception and must come from the C&P director in DC. Making it a rare occurrence.