PTSD increase A&A added

[taylor88be8]

I have been TDIU P&T for over 6 years well since I medically retired from the Army for PTSD on June,26,2012 (PDRL).  

My current ratings are 70% PTSD. ,30%Migraines  30% Gerd 10% Tinnitus 0% ED  combines total of 90%

 

I was awarded VA Caregiver from 2012-2014 until my wife left me them I lost Caregiver 

 

question is if apply for a increase in my 70%PTSD and I have a DBQ signed rom a medical doctor stating “Total Occupational and Social Impairment”  and the same MD filled out the VA Form 21-2680 A&A Form stating I need it.

 I’m also on SSDI since 2012 for PTSD as well   

I already have SMC-S and SMC-K

 

What are my chances for any of this?  

 

Thanks 

 

Edited March 26, 2018 by taylor88be8

[Buck52]

Gastone I am not sure and Alex knows what he is talking about here and with those regulation he put up  ..we got to go by those.

But as I understand what your meaning..I was 90%   S.C. combined Rating  and on TDIU P&T , then I was granted 70% for Chronic PTSD and that changed my ratings from the 90% to 100% to become a  a final degree  and the PTSD Rating met the criteria for SMC S 1 H.B. According to the SMC Special pay table.

I read this off my Award letter

[Gastone]

NOD & Buck, as much as I hate to reverse my earlier (this am) statement regarding the SMC S (1), I absolutely do.

Just did a couple searches regarding SMC S (1) and I've decided to continue using both SMC S (1) and SMC S (2) terms when discussing the SMC S Housebound Rating.

For those interested, the basis for my decision is the following. 1. BVA Decision 14 - 2272 02/2016 Gazelle V McDonald refers to both SMC (S1) and SMC (S2).  2. Ben Krause VA Lawyer article 12/30/14 addressed SMC S (1) & (2) and linked to Cornell Law LII article addressing 38 US Code - Rates of wartime Vet comp, where again both (S1) and (S2) are addressed.

Then comes the last but not the least reason, I checked my own E-Ben page, and there it was.  Listed under Benefits - Special Monthly Compensation Benefits, SMC (K-1) and SMC (S-1).

With that said, I will continue to address Scheduler Housebound as SMC S (1).

[FormerMember]

I see your argument only as to the two possible ways to be awarded SMC at the (s) rate. Using your model, I would say if you are going to number them, then there are two forms of SMC (s)- i.e. SMC (s)(1) which is the standard 100+60% route as described after the number (1) in the Statute. The other method to attain SMC at the (s) rate could be characterized as (s)(2) because a (2) precedes the method describing being diagnosed by your PCP as "substantially confined by SC disabilities". Now that numbering system makes sense. So why SMC S and SMC S (1)? I see above you suddenly just began using SMC (2).

What caught my interest was the first comment you made on Tuesday @ 0401 AM: "I don't see how you qualified for SMC S or S (1)." "Or" is a disjunctive conjunction that separates two different things like "you need 100% +60% more OR you need to be substantially housebound." Using 'or' above makes S unequal to S(1). 

I didn't say anything earlier but above you referred to SMC (s) as a schedular rating. "You indicated an SMC S, not an S (1) Scheduler. Not a big deal." 

From this I misunderstood you to say  there were two different "rates of $ payment"-i.e. SMC (s) = $X but (s)(1) Schedular = $Y (a higher or lower dollar figure than SMC $X). The number "-1" in (S-1) in ebenefits is simply a counting tool for a VA confirmed ratings sheet. When VA rates you, they always crank out a form called a "Confirmed Rating Decision". I attached one below. First, all your SC schedular ratings are listed with the diagnostic code and the dates of ratings for each separate disability. After that, they list any NSC ratings. Then on the next section they have a SMC "worksheet" that shows all your SMC ratings. I'd have to hunt a SMC sheet up later but I will if any would like to see it.  Each one is listed and numbered along with date of entitlement. These are awarded above and beyond any and all schedular ratings. If you get a copy of your c-file, you'll find these documents. VA doesn't mail these out to us with our decisions.

Say you lose your right foot at the ankle you get a 40% rating. But.... you also get SMC(k). If you have more than one qualifier for a SMC(k) "award", you'd get paid $105.61 for each and every one on top of any schedular ratings you have coming from the Part 4 VASRD. It's like legal pyramiding. So....Some of us have loss of use of a creative organ annotated as (SMC K-1), add loss of, or loss of use of, one lower or upper  extremity and you have (SMC K-2) = $211.22, add loss of both buttocks (SMC-K-3)=$316.83, add loss of use of one eye (SMC K-4)=$422.44 et cetera. You can have up to 8 SMC(k) ratings and each pays $105.61.

SMC(s) works far differently. I am rated SMC (S-3). I have two 100% schedular disabilities, a 60% schedular disability and  independent schedular ratings of 40%+30%+10%=62%. The 60%  schedular disability is secondary to one of my 100% disabilities and cannot qualify as a distinct, separate disability independently ratable at 60% or more or I would be (S-4).  Unfortunately, the rate of payment for (S-3) is the same as SMC (s) as described in 38 USC §1114(s).  It seems to me that you are confusing SMC (S-1) on ebenefits as SMC S(1) and SMC (K-1) as SMC(K)(1). That doesn't make sense as there is no listing anywhere in §1114 for a SMC (k)(1) or arguendo, SMC (K-1). SMC (k) merely lists a number of possible qualifying disabilities but they are not specifically numbered.  The only place in §1114 where you see arabic numbers used as a suffix after a letter is (r)(1) =$7,419.88 and (r)(2)= $8,510.79. And boy howdy you can't miss the difference in your bank account if you are getting r-Anything every month. 

The term "schedular" will always refer to a rating between 0% and 100%. Special Monthly Compensation (SMC) is awarded after all schedular percentage ratings from 0% to 100% have been awarded using §4.25. SMCs are not part of, nor will they be found, in the schedular ratings located in 38 CFR Part IV (VASRD). Could be that's why VSOs never heard of them. It is a munificent reward from Congress above and beyond any schedular ratings to remunerate us for the degree of inconvenience and added costs of living caused by our disabilities. Hence the gradual increase in disabilities beginning at 38 USC §1114(k) and culminating in (r(2). Or, to keep it simple, the fewer of those 2,000 body parts you were born with, the higher your SMC award. 

Not trying to pick an argument with you Gastone but SMC is already more twisted  than the Mississippi River. You have to keep it simple. For all reading this, the simplest answer is there are two, and only two, ways to attain SMC (s) but there is only one payment  amount. It makes no difference if you call it SMC S, SMC S-1, SMC(s), SMC (S-1), SMC (s)(1),(2) or §3.350(i)(1),(2) as they all pay the exact same thing. But what you cannot do is append the suffix "schedular" to it because there is no "degree" of SMC(s)-i.e. "Yep. I'm at 10% SMC S but My VSO just put me in for an increase to 30% SMC S scheduler". 

 If you use 38 CFR §3.350(i)(1),(2), you can read the exact same thing for (s) under (i)(1) and  (i)(2).  And just because a VLJ says something is legal, doesn't mean it is. If that were so, me and about 6,000 attorneys would be out of a job. So would the CAVC, the Fed. Circus and the Supreme Court for that matter. Words mean something in this business. Look at the difference between 'refer' and 'remand'. I've seen judges and the ROs hamburger Vet appeals for years over that mistake. 

When I wrote my blog on SMC, I purposefully used Mr. Potato head as an example. Once you get to SMC (l), each subtraction of a body part increases the SMC level assuming they are all SC. Aid and Attendance is one of the hardest things in the world to understand on a good day and each case is unique for its subset of disabilities or combinations. This is not so for SMC(s). It's like being pregnant.  Either you is or you ain'ts. Don't make no difference how you got there.

 

CRS #1.pdf

Edited March 30, 2018 by asknod

[Gastone]

Nod, Copy That! I agree, as long as you got the S Award, you got the S Award. No difference in Comp $$$; regardless of VA (s-1) or (s-2) SMC Benefit indicator. I think those interested in (S) should be fairly well squared away after reading your post.

Could you opine regarding Taylor88's loss of Caregiver Award, subsequent to wife's departure in 14?

[Buck52]

what about the fact that this veteran was approved for the A&A  and his spouse was his caregiver now  (ex-spouse now and no caregiver) could he get a member of his family to be his caregiver?

I don't see how he ever got A&A in the first place with just a 90% rating or even the other ratings would not combiend to the criteria for the SMC. even if he was to get PTSD Increased to 100% still not enough  but bedridden means exactly that  that the veteran is confined to his Bed and needs help.

 VA they could have CUE if they made the mistake in rating the veteran for A&A????

Anyway

 So if he already had the A&A & Spouse was his caregiver but now divorce officially, why would this prompt another C&P? 

Could he not ask for increase ptsd? and request keep the A&A?

 on down further in the 3.350 (c)

which if he already granted  the A&A then wouldn't the ''one of the following conditions already been met?''

Veteran had met these conditions  if he was  granted A&A.    JMO.

The Regs go on to say=

(1) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met:

 

(c)Attendance by relative. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.

Edited April 1, 2018 by Buck52

[Gastone]

Thanks for the get back NOD, Buck as usual excellent points and questions.

I have to admit that I was somewhat premature in assuming (never good) that Taylor88 had indicated he lost A & A after his X split, now I think his X leaving caused her to lose the Primary Family Caregiver Stipend, about $1200??, paid by the VA directly to her as long as she resided with him.

If his EOR, VMC Clinician Notes, and his Private Dr satisfactorily completes the A & A medical questionnaire, there's always a chance. Regardless of what Taylor files for, PTSD Increase or just the A & A, he opens all of his SC's for Review and possible Reduction.