Do I Qualify For Smc S?

[whoami?]

I was recently granted 100% P&T. I have one rating thats 100% SC and I have a bunch of individual ratings that add up to 59 which should round up to 60. When VA decided my claim they didn't say anything about SMC but after doing some reading here I believe it should have been inferred last year when they decided my claim. Since it hasn't been a year should I ask for a reconsideration or file a NOD. How should I proceed?

[Philip Rogers]

Personally, I would: 1.) Request that the VA CUE themselves regarding the SMC award. 2.) File a NOD - don't miss the date. 3.) Request a hearing regarding the request that the VA CUE themselves. jmo

pr

[whoami?]

Thanks for your response Mr. Rogers? How do I tell the VA to CUE themselves? Can you explain to me why I would want a hearing regarding the CUE request. I don't know how to do a NOD either but I'm sure I can find that info on this site. Currently i have a VSO but for what it's worth its too much of a hassle trying to track him down. How can I relinquish him from his duties?

[broncovet]

There is a difference of opinion as to whether the SMC S "100 plus 60" is added or combined. YOu said yours was added, not combined. I suggest you "go for it", but you may be caught into the "added or combined" debate that WACvet posted some time ago. Im not sure that ever was resolved. Or, maybe you meant they "combined" to an additional 60 percent.

[FormerMember]

Before you count the chickens up, make sure the individual ratings are not related directly to or part of the 100% disability. VA considers it pyramiding and will not grant on that theorem. If you have a true 100% schedular for one disease, or TDIU to stand in its stead, all the added disabilities must be extraneous to it or be completely different disease entities/musculature injuries even if they are rated secondary. Here's 38 CFR § 3.350(i):

(i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and,

(1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or

(2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.

Always remember, too, that Special Monthly Compensation (SMC) at any rate is a separate, additional entitlement independent of your compensation rating. Thus you could be 40% for one thing and get SMC K for a lost hand or foot or loss of use of an eye-or both. You can actually have three Ks at the same time. But most importantly, SMC is awarded at the time you show the entitlement due. It technically does not require you to file to obtain it. It is paid retroactively to the date your medical records can show entitlement. VA's Sherlock raters are supposed to see this or the M21 computer is supposed to automatically point it out. If they overlook it, you merely have to tell them rather than file a tenuous CUE. I'd strongly suggest the IRIS method if the decision is rather new. This means the file and the claim are fresh in the rater's mind. I just whacked them for SMC S retro back to 1994. I did it the CUE path. I started in 2011 and won it in 2015 via an Extraordinary Writ when VA refused to honor their own C&P results.

Remember, SMC is one of the least known, most complicated entitlement programs that VA has and consequently is one of the hardest nuts to crack if they want to be anal about it. VA's ability to reattach a prosthesis to the remains of an arm or leg can determine the difference between N or N 1/2. Or P. The reason you didn't just get it automatically indicates VA suspects or wrongfully assumes some of the additional 59% is related to your 100%(TDIU) rating. Best of Luck, sir.

[Tbird]

asknod makes an excellent point. separate and distinct from 100%, thanks for the law reference

[Navy04]

Totally agree with Asknod on this one.