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Smc (S) Help

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bigwillienc

Question

I contacted a VA attorney to see if I qualified for smc (s). He replied with the following: As for SMC(s), you will need a 100% rating and a separate 60% rating (for a single condition different from the 100% rating). Unfortunately, we can't add other ratings to get the combined 60 for SMC(s).

Here is my story. I've been 100% P&T since 2008. My ratings are below

100% -Asthma
30% - Skin disorder
10% - rt knee
10 % - left knee
10 % -right 5th finger injury
10% - onychomycosis and tinea pedis
10% -tinnitus
I believe I qualify for smc (s) from what I've read and researched. Please advise if I'm wrong. My asthma is rated permanent in nature per va. I received the 30% skin disorder rating in 2008. This combined with my other disabilites, seperate from my 100% rating for asthma provided me 60%. Here are the questions that I have:

1. Do I qualify for SMC (s)?

2. Will I have to file a new claim or can I write my regional office and ask for it? Since SMC is a benefit and not a disabilty rating will I have to go thru the whole C&P exam process again? I coming up on my 10 year mark and don't want to do that?

3.If I do qualify, will I get any back pay?

Thanks in advance...

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  • Moderator

I put your numbers in a VA disability calculator, and it came out to 58% which rounds up to 60 percent, here:

http://www.vvaarizona.org/combined_disability.php

Thus, you should get "statuatory" SMC S (Housebound). I suggest you apply, even tho it should have been inferred.

Many Vets get hornswaggled out of their SMC.

Go for it, and appeal the effective date if you dont like the effective date.

Edited by broncovet
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I will add that I disagree with your attorney interpretation. The "100%" must be a single 100 percent, but the "60 percent" can be disability or disabilities.: GET YOU A DIFFERENT ATTORNEY..this one is costing you money.

M21-1MR, Part IV, Subpart ii, Chapter 2, Section H says it this way:

46. Entitlement to Housebound Benefits

Introduction

This topic contains information about entitlement to Housebound benefits, including

  • statutory entitlement to Housebound benefits

  • determining whether the Veteran is permanently housebound in fact, and

  • protected evaluations.

Change Date

September 8, 2009

a. Statutory Entitlement to Housebound Benefits

The Housebound benefit is payable under 38 U.S.C. 1114(s) (38 CFR 3.350(i)) to a Veteran who has a single, SC disability rated as totally disabling, and

  • has an additional SC disability, or combination of disabilities, independently ratable as 60 percent or more disabling, or

  • is permanently housebound due to SC disability.

If the Veteran is entitled to Housebound benefits by statute (without demonstrating need, under 38 U.S.C. 1114(s)), the additional disability(ies), rated 60 percent or more disabling, must

  • be separate and distinct from the single disability, rated totally disabling, and

  • involve separate anatomical segments or body systems.

Notes:

  • The principles regarding avoidance of pyramiding contained in 38 CFR 4.14 are applicable.

  • Within these limits, the fact that the single disability, rated totally disabling, and additional disabilility(ies), independently ratable as 60 percent or more disabling, share a common etiology, does not preclude entitlement.

  • Ratings of 100 percent under 38 CFR 4.28, 38 CFR 4.29, and 38 CFR 4.30 of the rating schedule may be used as a basis for entitlement.

  • Per Bradley v. Peake, 22 Vet.App. 280 (2008), an individual unemployability rating that is based on a single disability also satisfies the requirement for a total rating under 38 U.S.C. 1114(s).

Continued on next page

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  • HadIt.com Elder

I believe technically, using the combined ratings table, your total is 159, which would round up to 160. Therefore you should have been awarded an "s" award. You should be eligible for retro back to the date you qualified with those ratings and if it was 2008, they owe you back to 2008.

Personally, I would file a CUE, as an "s" award is a given, meaning when you achieved that total, they are required to pay you. Congrats!!! jmo

pr

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