SMC S...Dont make this mistake!

[broncovet]

I went down a rabbit hole to nowhere.  I reasoned, that, if I got SC for sleep apnea secondary to depression, that I would make the "100 plus 60" for statuatory SMC S.  

Big mistake.  If you read the regulation, it says you have to have 100 plus an additional 60 percent seperate from each other.  So, if depression is primary, and sleep apnea is secondary to depression, then its not seperate, and I wont ever get to 100 plus 60, no matter whether service connected for sleep apnea or not.  The "secondary" provides a link that they are NOT seperate.  

I found this out recently.  

You MIGHT be able to get away with this, if you have an uninformed decision maker, but it wont fly on appeal.  

I will be dropping my sleep apnea claim for this reason.   

[ArNG11]

23 minutes ago, john999 said:

AskNod  says that even if your many individual disabilities add up to 100% you are not considered 100% scheduler.  I am stuck at 90% unless I get another rating of at least 50% because I think I am at 93% rounded down to 90%.   I have 3-4 more years of sending in Employment questionnaire because when I hit 70 or therebouts no more paperwork for IU.  In five years I will have 20 years of being IU.  I would like to be rated as 100% before then if possible.  I had the Inspire device implanted in my chest and throat instead of using the C-Pap.  I think it works OK plus I get oxygen every night.  My OSA was pretty horrible and life threatening.   I have been playing with the VA for 45 years just to get what I got.   What a long strange trip it has been.    For Vietnam vets agent orange related disease will probably get us all in the end.   I went to a psychologist at the VA to treat my insomnia.   He asked if I had been DX'ed with PTSD.   Of course, but I am already rated for it. 

My question is this:  What conditions cause OSA?  Is it related to being obese or some other set of conditions?  The conditions I have are all so intertwined with VA disabilities it is hard to separate them out as to being VA or non-VA. 

 

John I agree with you on most.  The thing in your case would be a doctor stating that one of your service connected conditions aggravates or increases another service connected condition (leg bone connected to the knee bone ect.)   Bam thats the nexus I think.  

The intertwined issues have to be specifically called out by a medical professional indicating the relationship, cause, effect that one condition has over the other.  Kind of lets PTSD,  heightened stress, anxiety will undoubtedly increase your blood pressure to the point where the BP needs to be treated.  As long as a medical professional gives the nexus for the two, I would think that would be enough, plus all the other requirements for service connecting a condition are met as well.  

It's hard when issues are intertwined with others.  Both conditions can cause a change in the other.

[ArNG11]

2 hours ago, Buck52 said:

Roger that Gastone.

Beings I only got a 70% for the PTSD  I will have to use the IU as my stand alone disability  so that means I have 5 more years  sending in the employment questionnaire.

A Veteran needs to check his  rating status occasionally  make sure what they added? or took away without us knowing it.

 

Mr A  you should try to get copy of your award letter it should be up on ebenny's?

you really need a copy of it  if you have other claims pending  even NOD.

IF they rated you IU using the extra schedular formula at 90% and you get at least 60% for your Back and with your other disabilities no matter how small ( they can only rate in 10% increments) on the level of the disability ...and  your Back  % would be considered a different disability..so my thinking is after they  add up the smaller % that would bring you the 100% and then use your Back ratings for the SMC's S-1 & Possible K AND L-1 1/2  depending on your Back  disability and other complications from it??

you could get a 100% rating on your S.C.Back problem  and if so you should be getting some statutory ratings for SMC.

jmo

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

Even though it's my legal right to get copies of my file via FOIA, the run around with the evidence intake center makes it harder.  Visiting Muskogee has proved useless already once, but I will keep on putting the pressure on.  Eventually I will get the files I need to make this work.

Buck you're right on the money with your thoughts.  You really have to read the regs with the SMC qualifiers.  It shouldn't be as hard as it is for moderately disabled folks to qualify.  Here's liberal application of the law though, VA's words, not mine.

[Buck52]

you got this now broncovet

← DECISION REVIEW OFFICERS–AS SEEN BY…

FORT FACEPLACE–A COMPENDIUM OF SUMMER →

CAVC– HOWELL V. NICHOLSON– WHAT SMC-S REALLY SAYS

Posted on August 25, 2014 by asknod

 

 

 

 

 

 

 

6 Votes

 

 

I find SMC or Special Monthly Compensation S, as accorded to us true War Vets, to be highly misunderstood by-gasp-Veterans Service Officers who should, by rights, be well-versed in this. I just ran into one on another HCV helpsite and he is obviously a Veterans Service Officer. He was convinced that our VA lawyers are only entitled to a maximum of $5,500. I’m sure he misunderstood that. VSOs would prefer lawyers get out of the business entirely.  Among possibly the most misunderstood is differentiating “S” (housebound) and the “AA” (Aid and Attendance 1 & 2)  referred to here in Mr. Howell’s decision as SMC-HB and SMC-AA. Watch the walnut shell with the “S” pea under it closely as it is going to move around a bit and be shoved to the bottom and the rear. 

This is a panel decision of three Judges (Kasold, Lance and Schoelen). They all signed it so it was unanimous and good law. The important thing to dial in on is that the VASEC is going to have to go back to 1945 for the definition of “S”. When he gets there, he’s not happy with what he finds but has to stoically suck it up. For those of you who haven’t yet experienced it, VA will drag in a long discussion of how you are not eligible for Aid and Attendance even though you specifically asked for a determination of Housebound. Here’s why.

38 USC § 1114 that deals with this lists the different levels of megadisability above and beyond what you and I call 100 percent schedular. We’re headed into Mr. Potatoheadcountry where bits and pieces are missing. The levels of disability are listed as alphabetical letters with no apparent reason for why they started halfway through. SMC-K or Special K is the first and the second- cheapest at $101.50 a month. SMC-Q pays $67 a month and is a throwback to some unknown era. The next higher, even though non-sequential alphabetically, is S. S currently pays $341.44 which isn’t chump change. That will finance a nice Corvette payment monthly.

Next, as with all VA Statutes, the VASEC has to get his mitts on it and rearrange what goes where and why we have difficulty with this. 38 CFR § 3.350(i) Special aid and attendance benefit) is hidden beneath  38 CFR § 3.350(h) which deals with the Aid and Attendance ratings. It’s also the very last one. VA must cross that AA bridge every time to get to the S. It’s a magic rite of passage.
“The Vet filed for AA or, in the alternative, for Housebound. We will first discuss his entitlement to A&A and the reasons for his denial.” 

Part of the mystery is the form used. Here’s VAF 21-2680 and voilà-mystery solved. Hundreds of you have emailed me with the plaint “But I never asked for A&A”. Equally more have said their VSO said if they were strong enough to make it to a VAMC or the VSO offices then they (the service officer) could not, in good conscience, file a AA/HB request for examination and determination of status. Bad form.

Which brings us to our friend and fellow Veteran Mr. Robert L. Howell (no relation to Messieurs Bell and Howell) of the Korean Misunderstanding.

Copy of Howell 04-0624 opinion final

Old Bob got the pretzel brain syndrome over in Korea in ’55 and was eventually service connected at 70% thirty years later in 1981. His schizophrenia, put politely, was probably PTSD but the VA was still hammering out the details on what that was in 81. Shell shock and the thousand yard stare had fallen out of fashion by then and they were still fleshing out the DSV I or II Manual definitions. Schizoid worked and Bob could care less what they called it. In April 1982, they gave him the Full Ride VA scholarship with P&T. Everything went swimmingly right up until the twenty first century when the Bobmeister wrote in and said “Yo. I think I need some extra help here. My wife is now doing everything but change the diapers.”

Bob Howell, Cooooome on Doooown!

Well , you know the drill. Bob Howell! Coooooooome on Down and let’s see what’s in Monty’s Cookie Jar! so they could fit him for his new necktie. Bob outsmarted them by ten and said negatory, folks. My mental disorders prevent me from attending the C&P party. VA being VA, immediately got out the Ouija Board and construed this to mean he wanted both A&A and S. Only at a VARO could they torture this interpretation out of a plea for help.

In August 2000, the RO construed Mr. Howell’s letter as a claim for SMC benefits based on his being permanently housebound in addition to his claim for SMC benefits based on the need for aid and attendance, and it denied the claims. Mr. Howell filed a Notice of Disagreement with the RO’s decision.

And away this went. The BVA, like total ditzes, strapped on the stethoscopes and MD gear and waded in. Additionally, the shrinks and doctors all just wrote down what Mrs. Howell said about Bob’s condition(s) verbatim. Bob stepped in it too when he arrived in a wheel chair but said he didn’t use one around the house. The Veterans Law Judge must have been out on the golf course by eleven that morning laughing his ass off at how dumb Vets were and hitting in the high seventies.  Unfortunately, when you play the adjudications game, you have to kowtow to the rules. The VLJ went waaaay off the reservation on this one. I’m of a mind that he honestly didn’t even know what “housebound” really was and acquiesced to his minions and the status quo.

On appeal, the Board denied Mr. Howell’s claim for SMC on the basis that his schizophrenia, as his “sole service-connected disability, alone, does not render him housebound or in need of the regular aid and attendance of another person.” Regarding Mr. Howell’s housebound status, the Board specifically found that “the record reflects that the veteran is able to leave his house to  attend to regular treatment appointments . . . and to attend VA examinations when motivated.”  The Board concluded that “the record clearly reflects that he is able to leave his house when desired, and there is otherwise no evidence suggesting that it is his psychiatric disability, rather than his numerous physical disabilities, which interferes with his ability to leave home.” 

About here is where the shit got pretty deep. And I’d like to add that comment about  “when motivated” was a purposeful dig. The BVA are like a bunch of kids all dressed up in robes and playing judge. They are easily swayed by their boss who wants to husband the VA’s funds for his buddies. Thus if everyone plays ball, everyone gets a present in the December paycheck for being a “Team member and concerned stakeholder” in the proper outcome of Veterans Law. One little problem. Let’s go back to 1945.

When they got to Court, everyone started looking at when SMC S was born, to whom and what the parentage of it was. Sometimes these things have strange beginnings and even stranger definitions. Lo and behold, so did SMC S. Being “housebound” actually wasn’t entirely what was envisioned by Congress in ’45. As usual, something was lost in the translation. Ever tried the old party game where you lean over to Jim and say Steve got a promotion today? Jim leans over to Sheila and says Steve got a raise. Sheila turns to Dora and says Steve got laid off today. By the time it gets to around twenty reiterations in the loud, ETOH-driven room, old Steve got divorced and Sandi got the house, the Beamer and the kids.

What was lost here is very important:

Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra. The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the 
claimant is restricted to his house except for medical treatment purposes

[Buck52]

Mr A ,

All veterans have a right to their VA Records

you could email MaryAnn.Wentzell@va.gov   she is one of the head managers  at RMC (Records Mangement Center) in St Louis Mo

Let her know your problems you been having with the rou-around with all you have requested she should be able to get you that award letter  if not she can certainly let you know how to get it.

she is a nice lady and veteran friendly.

she helped me get my C-File  I am not sure what she did but after I contacted her I had my C-FILE within 30 Days.  she even said to me if I don't hear anything in 30 days to email her back and let her know.

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

[john999]

Buck

 

                  I am glad you posted the BVA interpretation of Housebound.  Almost nobody meets the requirement if that is the true meaning of Housebound.  I get the statutory "S".   If I had to qualify for the actual "S" I don't know how I could do it unless I was in a nursing home or some sort of facility.  I have to leave the house to buy food and  just attend normal functions of a adult human being in the USA.  My wife can do a lot of things for me now, but what if she were not around or if she becomes more disable herself?  How would a single veteran every meet the requirements for housebound unless he can afford to hire someone to do his shopping for him and all chores that require him to leave home.  100% compensation does not pay near enough to provide for a caretaker other than a spouse. 

                  If you or a loved one has to go to assisted living or nursing home then you are entitled to get A&A and so is your spouse if she/he ends up in a home.   What the VA does is to stall on the A&A award until the person in the home dies.  Cased closed or keep estate open until the VA gets around to paying retro A&A if they even do that for estates of dead people.  My mother died while we waited for the A&A award I had filed.  My father was a disabled WWII vet and by that standard my mother was entitled to A&A.  I also filed on behalf of my grandmother and VA said no records.   I later found military records of both my father and grandfather with little effort.  It has been years and I am not sure I want to reopen closed probated estates to get a few bucks for entire family.  When you see the amount of A&A the VA will pay for vets or spouses of vets in nursing care it is shockingly low.  I think it amounts to a few hundred dollars a month when private nursing homes cost about $6000 a month.           

[john999]

ArNG

                   You are so right about getting secondary conditions service connected.  You really must get a doctor to write up a report that justifies how and explains the connection between a primary SC disability and secondary.  The VA knows exactly what is needed and used to have template their in-house doctors could use for this purpose.  Back about 8 years ago my then current VA  PCP did help me get my CAD connected as secondary to my SC'ed DMII.   She took the template right off her computer and just put my facts in the blank spaces.   The VA stopped that practice because too many vets were getting SC'ed for secondary conditions.