VA awarded SMC-S, then removed. Don't understand why?

[HitemStraight]

My claim was filed in Feb, 2014 and awarded in July, 2015. I am 100% schedular for back disability. I was awarded SMC-S during rehab (additional 100% ratings after surgery) for 2 hip replacement surgeries (in fall of 2004 & spring of 2005), secondary to the 100% schedular rating. The rehabs overlapped and SMC-S was awarded for total of 17 months (100% plus additional 60%). After the 17 months for rehab, I was awarded 30% for each hip for a total of 60% additional. The SMC-S was retro for the 17 months during 2004-2006, then they took it away after the 17 months in May, 2006. Shouldn't the SMC-S have continued based on the two 30% hip awards ((if added = 60%; if combined = 60% with bilateral factor (30% + 30% combines to 51%, plus 5.1% bilateral = 56.1% rounded to 60%)). This should qualify to continue on with SMC-S beyond May, 2006 when VA removed it.

Am I correct?

Need help understanding, thanks !!

(this post was re-worded from previous post under different title)

 

 

 

Edited August 17, 2015 by HitemStraight

[broncovet]

Your reasoning sounds good to me.  I will add there are specific rules to reduce you that the VA must follow.    However, those rules are "exempt" if you have a convalescent or temporary rating, as those are, well, temporary while you are recovering from surgery.  

Did your decision state this was a temporary rating while you are recovering?  Post the wording, as well as the reasons and bases, if you are unsure, covering your name and identifying details, such as your address.  

[Buck52]

HitemStraight

you may need to file either a NOD or if you haven't  ?  file a claim on both surgeries for the extra 60%  and ask for SMCHouseBound

broncovet is right   they  gave you a temp rating to have the surgery's, but you can Disagree with that decision, or file a new claim on the surgery's for the SMC Request HomeBound, however if they rating you 30%for each hip, and if your already 100%  the extra 60% should qualify you for the SMC/s

Be sure and recheck the dates on this!!!

They should inferred the SMC if your 100% plush 60%   so this could be filed as a CUE claim.

 

 

...................................Buck

Edited August 13, 2015 by Buck52

[HitemStraight]

Buck52 & broncovet and all others:

I have been 100% schedular for back condition since 1980 (neck wound Vietnam awarded 50% in 1971; Spondolytis awarded in 1980). I have never filed another claim with the VA since then, over 30 years. In Feb, 2014 I filed a claim for two total hip replacements secondary to my back condition (and several others - PTSD, IHD etc.) The surgeries were in Nov, 2004 & Mar, 2005. I never filed a claim back then as I was not aware of additional compensation through SMC until I read about it on posts on this forum several years ago. I put together the claim in Feb. 2014 and received the award last month in July, 2015. As mentioned above, they awarded SMC-S for 17 months, for convalescence, effective dates from Nov, 2004 to May, 2006 (100% for each hip). On May, 2006 they changed the ratings to 30% for each hip (minimum rating for post hip replacements with prosthesis) for a total of 60%. That rating would be correct, however, they also removed eligibility for SMC-S, effective May, 2006. 

As you can see in the wording of the award below, they awarded 100% for the convalescence periods then reduced to 30% for each hip after that period. The VA Rater used the part of SMC-S rules/law which states 'single 100% rating plus additional 60% disabilitiy(s)' to justify the award. But why would he/they remove the SMC-S after the convalescence/rehab period. Clearly I am still eligible for SMC-S beyond May 1, 2006, since when using the combined rating table (30% + 30% combines to 51%, plus 5.1% bilateral = 56.1% rounds to 60%), I should still get SMC-S from May, 2006 forward to current. I believe I have a CUE claim for SMC-S retro from May 1, 2006. Through process of elimination (and lots of though), the only thing I can think of is that the VA Rater failed to apply the bilateral factor for the hips after the two 30% award ratings, thereby only using the combined 51% for his/her determination of SMC-S ongoing from May, 2006. I may be wrong, but that is all I can come up with .....

This certainly seems like an error made by the rater. I have not filed a NOD but I am considering a CUE ????

Sorry for the lengthy explanation, but the only way I can fully make it clear what happened.

All comments welcome. Thanks !!

The exact wording in the award ......

 

[Berta]

As i understand this, you still have the 100% rating " I have been 100% schedular for back condition since 1980 (neck wound Vietnam awarded 50% in 1971; Spondolytis awarded in 1980)."

Based on your math (I am not good on how VA combines  stuff) but if the 60% is accurate for the hips

"since when using the combined rating table (30% + 30% combines to 51%, plus 5.1% bilateral = 56.1% rounds to 60%),"

 "I should still get SMC-S from May, 2006 forward to current."

"I believe I have a CUE claim for SMC-S retro from May 1, 2006."

I agree something definitely seems wrong.

BUT

Is there someway they cured this:"I have been 100% schedular for back condition since 1980 (neck wound Vietnam awarded 50% in 1971; Spondolytis awarded in 1980)"

of course they didnt cure anything but the narrative says that your bilateral hip DJD was "previously incorporated with the ankylosis spondolitis"

I think that is the problem here...what do they mean by 'incorporated" in the older decision?

I  do not see how they could incorporate the spondolytis, with the hip DJD and even if they did ,what happened to the 50% neck injury SC? A neck is far away from a hip and I assume by injury , this was not part of the DJD.

What is the date of this decision and can you attach it here, to include the Evidence list? (cover c file, name, address prior to scanning)

They make many errors in those little boxed in ratings. I am fighting over a big monetary error now.

 

 

[HitemStraight]

Bertha:

I don't want to get into too much past history, as it does not really have much relevance for this post, however, to give you an understanding for the 100% award, here we go  ..... I received a Medical Board from the Army in Dec, 1970 for the neck injury and continued chronic inflammation, and placed on the Temporary Disability Retired List (TDRL) for 5 years till 1975. In 1975, they removed me from the TDRL list and permanently Medically Retired me from the Army, with a 50% rating. During that 5 year period I was diagnosed with Spondolytis, which involves not only the cervical spine but the T-spine and L-spine as well. While on TDRL, in 1971, I filed a claim with the VA for the neck and was also awarded a 50% rating. In 1975 I received the final Medical Board from the Army which included the Spondolytis diagnosis. That final board was provided to the VA and they changed the neck rating to include Spondolytis. They then increased that rating to 60% in 1977, and then to the final 100% rating in 1980. That 100% rating was for the Spondolytis and included the neck (C-Spine) and full spine.

Spondolytis is degenerative and can sometimes include secondary conditions of the hips and other joints as well. I did start to have hip problems in the early & mid 80's, but was never given an independent rating until this recent award in Feb, 2014. I was treated at the VA Medical Center for many years for the hip disease, with numerous x-rays, CT scans etc. I was told by treating my doctors at VA that the degenerative hip disease was in fact secondary to the Spondolytis, but I don't have any paperwork stating that for sure.

On another note ..... Some doctors believe that the Spondolytis could have been 'triggered' by exposure to Agent Orange in Nam, as there is research that supports the onset of auto-immune disorders after exposure to dioxin. There can also be a genetic predisposition. But that is a matter for another post .....

Regardless of exactly what caused the onset of the Spondolytis, it is service-connected at 100%, and is the basis for my 100% individual schedular rating for SMC-S purposes and the topic of this post.

I just don't see any reason why they did not continue the SMC-S beyond May, 2006. I have a single 100% rating and 60% additional disability(s). If you add the two 30% ratings, or combined the two plus the bilateral factor, you still reach 60%. And, the hips are now independently rated and are considered separate and distinct. Again, I think I am looking at CUE .....

Guess I got into past history, huh !!!!

Also - Can you explain what you mean by "cured".

 

[john999]

The VA did something similar to me.  I had a P&T rating and then in 2008 I got an extra 60%.  No mention of SMC-S.   I did file a claim for the  housebound.   VA treated it as a CUE and granted the HB.   If I had not filed the claim I would never have gotten it even though I have Total plus 80% now.  I would file for that "S" yesterday.  I got two years of retro because I did not learn that I was entitled to HB until two years after the fact.  If you think you are being screwed by the VA then you probably are.

 

 

          John