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

[Berta]

I was just being facetious about the "cure".....

A few months ago the director of my VARO tried to get me to believe my dead husband's 1151 100% plus SMC rating was only Temporary, when he died.

I fought back with plenty of regs and also evidence and asked her at one point how they "cured " him  before he died of what my evidence all states was a Permanent and Total 1151 CVA (stroke), to attempt to make me accept the BS the director was trying to feed to me.

All 100% total disabilities  are Permanent disabilities at death..

 

After a battle over that , she rescinded her 'medical opinion' by another  phone call.And then she gave me the wrong established date for my NOD and after I contacted the VAOIG and others, that too was changed.

I seem to be even more confused then I was here this AM.

So you will be getting only 30% instead of 100% plus SMC? or the 100% is still direct deposit?

Did they state anything about appealing this reduction ?

I regret I would need to read the entire decision before opining more on this.

I guess my 'cure' point was what did they make better and non disabling to you, regarding the 100%, by the time they decided to reduce the overall rating.

We have a wealth of info on CUE claims in our CUE forums.

 

 

 

 

 

 

 

[HitemStraight]

As mentioned, I have been receiving 100% schedular for Spondolytis since 1980; that has not changed, I still have that, they cannot reduce it !! 

My two hip replacement surgeries were 4 months apart,  in Nov, 2004 and in Mar, 2005.

VA awards 100% ratings for 13 months after surgery for a service-connected condition for convalescence.

The additional 100% ratings I was awarded are standard ratings for the 13 months after surgery (for hip replacements/knee replacements etc.) for convalescence; however, my surgeries overlapped, so I did receive the ratings for 17 months during my hip replacements convalescence, and they awarded SMC-S for that time period (Nov, 2004 to May,2006; 17 months). From the first hip replacement surgery in Nov 2004 to the end of the convalescence period for the second hip replacement surgery in May 2006 (13 months after 2nd surgery) . Remember, my surgeries were 4 months apart. When the 17 months expired they reduced the ratings for the hip replacements to 30% for each hip, for a total of 60%. 

So, I am rated 100% P&T schedular for Spondolytis and 30% for left hip replacement & 30% for right hip replacement (60%). 

100% rating for Spondolytis neck & back condition.

30% rating for left hip replacement.

30% rating for right hip replacement.

The two 30% ratings are bilateral.

 

(From 38 CFR 3.350):
(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 or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems.

 

So, according to above, I should have been awarded (continued) SMC-S from May, 2006 to current time. Therefore, I figure I should have been awarded SMC-S retro for the past 9 years & 4 months.

VA always seems to make it difficult !!!!

 

[Berta]

OK I think I got it....you get 100% SC and then the bilateral factor must kick in on the hip ratings:

https://www.law.cornell.edu/cfr/text/38/4.26

..

you sure are right about the 100% plus 60 equals SMC.

I hope others chime in here because they are supposed to rate bilateral factors in a different way then other disabilities...this  article has an explanation of that regulation and how they rate them:

http://themilitarywallet.com/va-math-combined-disability-ratings/

It seems to me that the bilateral factor gives a more favorable rating then ,say ,adding  2 SCs together that are not bilateral but with combined rating in VA funny Math.

 

 

Edited August 14, 2015 by Berta

[broncovet]

If your ratings for 30 % for "hip replacement" are temporary, then you would no longer meet the criteria for SMC S, is what they are saying.   You can look that up, but count on the VA to take a convalescent rating away.  

[Berta]

"When a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability."

That is from the reg above.......I get 51% like you did ( 30 plus 30) but then added the bilateral factor of 10% and it rounds out to as you said, 60%    sooooooooooooo

you do seem to have  a CUE, as the legal error they made, to your detriment was improper application of the above regulation, 38 CFR 4.26.

I would file the CUE claim using that as the legal error, tell them how the math should have been added up properly and ask them for the SMC retro for ( the proper date range) that they denied you,manifesting an altered outcome of this (date) decision,to your detriment.

If I were you I would state the evidence attached at the bottom of the CUE claim thus:

Exhibit 1.   copy of the decision you are filing the CUE on, to include the scanned stuff you posted here.

Exhibit 2.   copy of the Bilateral factor regulation they broke (38 CFR. 4.26)

Exhibit 3, copy of your mathematics calculations and the proper date range for the SMC

Exhibit 4 ( this would be a nice touch to bolster the claim...search M21-1MR,  a large doc available via google for anything there on the proper application of 38 CFR 4.26 and list that as evidence too. Tomorrow if I have time I will look in M21-1MR too.

Is this a new decision? meaning less than a year old?

 

 

 

 

Edited August 14, 2015 by Berta

[HitemStraight]

To Bertha:

Thank you for the links. I think they confirm my calculations that the two 30%'s when combine with the bilateral factor added, rounded up to 60%.

I think you are right on with the suggestions as to what to include in a CUE. I have been over this a thousand times in my brain (what's left of it), and I keep coming back to the VA Rater just missing this. Possibly combining the two 30%'s to 51%, then just not adding the 10% for bilateral factor.

I will do a Google on the M21-1MR tomorrow as well, and see what we get. 

This is a new decision, less than a month old. The award letter date was dated 07-23-2015.

To Broncovet:

The 30% ratings for each hip are permanent. They are the minimum rating for hip replacements after surgery according to the Schedule of Rating Disabilities. Higher ratings are available for "moderately severe residual weakness, pain and/or limited range of motion".

They did rate 100% for convalescence/rehab for 13 months after the surgeries, awarding SMC-S for the convalescence, but removing the SMC-S when they reduced each hip to 30%. That is what I believe to be a CUE !!

That 13 month 100% rating after surgery is also standard for hip, knee, shoulder replacements etc.in the Schedule of Rating Disabilities. 

John999:

I think you are right on - "File that 'S' yesterday". We are looking at over 9 years retro SMC-S to May, 2006....