SMC J; SMC S, What to file for?

[THOMAS89031]

Scenario:   VA awarded veteran a 100% PT IHD Agent Orange Claim (Nehmer) filed back in 2010.   But neglected to award SMC.

When you file, should  you request SMC J or SMC S?  (SMC (j) is 2673mo; SMC  (s) is 2993 mo.)

Do you mention Bradley vs Peake  or Nehmer provisions?

 Do you indicate its being filed as a CUE or just say:________etc,etc.......

Any other opinions?   Thanks

 

 

Cornell University Law SchoolSearch Cornell

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Buck52]

I was awarded 100% TDUI P&T no future exams and disability as of chronic  in nature back in 2002 and they never mention SMC.

 a veteran has to meet the criteria for the SMC   and need to meet the % rating of 160% over the 100% the VA has  a special rate table to rate SMC's when a veteran qualify 

if you have a CUE you need  to file the correct form   21-4107 or 4597

I believe? but not sure on these form #???

you may want to read  Regulation 38 1404 part 20

Edited May 1, 2016 by Buck52

[THOMAS89031]

55 minutes ago, Buck52 said:

I was awarded 100% TDUI P&T no future exams and disability as of chronic  in nature back in 2002 and they never mention SMC.

 a veteran has to meet the criteria for the SMC   and need to meet the % rating of 160% over the 100% the VA has  a special rate table to rate SMC's when a veteran qualify 

if you have a CUE you need  to file the correct form   21-4107 or 4597

I believe? but not sure on these form #???

you may want to read  Regulation 38 1404 part 20

Buck:  In Bradley v Peake  22 Vet.App.280 (2008)  It states "If the disability alone supports TDIU, then the

disability satisfies the requirements of a single SC disability rated 100%"

Could you now file a SMC claim using Bradley v Peake ?.

Thanks for the other suggestions..

[Berta]

I had an SMC CUE awarded under Nehmer but that statement simplifies what I posted on it here in 2012 (available under a search)

If TDIU is granted solely for one disability and any additional disability ( independent of the TDIU one) is rated at least at 60% that qualifies for SMC .

Same as for 100% SC.

My husband was 100% P & T for PTSD , then awarded 100% posthumously for a 1151 stroke.

They (Nehmer) gave him the Housebound award of SMC S but in another part of the very long decision, they also considered the 100% plus 60% regs too.

SMC S pays the same amount regardless of HB or 100 plus 60.

What is SMC J?

The SMC  CUE I won I stated was for "Lack of consideration of the SMC mandate". That was their legal error.

I sent them the Mandate.It was dated years prior  to the decision I cued.

The established medical evidence they had at time of the alleged CUE fully supported the fact that they legally had to consider the SMC mandate.

I had to spell that out to them like they were 10 years old.

Once they properly applied the mandate ,they awarded the CUE claim.They also awarded a IHD CUE claim I had filed and a CUE on the 1151 stroke ratings.

Those claims were less then 2 or 3  paragraphs. CUEs should be keep simple, no rhetoric, just cite the laws they broke and how they broke them, to your detriment ( mean they owed you cash due to their error)with the date of and attach a copy of the decision (and rating sheet)of what you are calling a CUE on. You Must be specific as to the Legal Errors.

 

 

[THOMAS89031]

Berta,  "What is SMC J?"   My Bad,  I was reading what I thought pertained to SMC.. 

But to answer your question, the cite I misquoted as thinking it dealt with SMC was actually 38 1110 (j) --

Sorrry.........

[THOMAS89031]

3 hours ago, Berta said:

I had an SMC CUE awarded under Nehmer but that statement simplifies what I posted on it here in 2012 (available under a search)

If TDIU is granted solely for one disability and any additional disability ( independent of the TDIU one) is rated at least at 60% that qualifies for SMC .

Same as for 100% SC.

My husband was 100% P & T for PTSD , then awarded 100% posthumously for a 1151 stroke.

They (Nehmer) gave him the Housebound award of SMC S but in another part of the very long decision, they also considered the 100% plus 60% regs too.

SMC S pays the same amount regardless of HB or 100 plus 60.

What is SMC J?

The SMC  CUE I won I stated was for "Lack of consideration of the SMC mandate". That was their legal error.

I sent them the Mandate.It was dated years prior  to the decision I cued.

The established medical evidence they had at time of the alleged CUE fully supported the fact that they legally had to consider the SMC mandate.

I had to spell that out to them like they were 10 years old.

Once they properly applied the mandate ,they awarded the CUE claim.They also awarded a IHD CUE claim I had filed and a CUE on the 1151 stroke ratings.

Those claims were less then 2 or 3  paragraphs. CUEs should be keep simple, no rhetoric, just cite the laws they broke and how they broke them, to your detriment ( mean they owed you cash due to their error)with the date of and attach a copy of the decision (and rating sheet)of what you are calling a CUE on. You Must be specific as to the Legal Errors.

 

 

 

 

Berta, What is the amount VA pays for SMC S?

[Berta]

The rates are here under a search and at www.va.gov, the link should be on their main page ,and here at Mil.com:

http://www.military.com/benefits/veterans-health-care/va-disability-compensation-rates.html