SMC S awarded never paid

[Msgt Ret]

I was awarded SMC S and have not been paid. I submitted a claim for compensation and was told to submit VA Form 21-2680 my problem is I was awarded this in 2012 back dated to 2010. I received a increase in compensation but did not know of the monetary benefits of SMC S. I am afraid that the “VA” is attempting to award in 2018 and not pay retroactive. I was also told when I called the 800 number that it was a mistake and I did not rate SMC S.

[Msgt Ret]

The reason that I don’t want to submit a VAForm 21-2680 is because in April 2015 I was diagnosed with stage 4 Lung Cancer NSCLC. I had surgery to remove left lobe. In 2016 Cancer spread had emergency surgery to remove spleen, left adrenal gland, left kidney, 10% pancreas, 5% stomach and scraped diaphragm. With these non service connected disabilities they would find that I am housebound. But would they say I am not entitled now.?????

[Berta]

I regret you have suffered with a lot of disability.

 "With these non service connected disabilities they would find that I am housebound. But would they say I am not entitled now.?????"

VA does not consider Housebound for Non service connected conditions.

I have asked questions here that any good vet rep or vet lawyer would ask.

What you posted is not a TDIU P & T award letter.

If you are not TDIU P & T ,I dont think you meet the Housebound criteria  and the VA did make an error in stating SMC HB,.......but I could be wrong because we don't have the info we need.

" I was also told when I called the 800 number that it was a mistake and I did not rate SMC S."

VA should have sent you a letter to that affect, unless the 800# made it up.

The VA plays a war game with us- I call it the War of the Words. The only way to fight back is to read all of their words, verbatim, from things that I suggested you scan and post here- such as their Evidence list etc.

I feel the only other suggest I have is to search for 'aggravation' here....

"Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for the degree to which a non- service-connected disability is aggravated by a service- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995)."

It is possible, with medical evidence , such as a strong IMO/IME that you could claim your SCs have aggravated the NSC conditions.

If the aggravation rating is 60% or more that could set you up for SMC .....if you do have a TDIU P & T award ( Bradley V. Peake)

But that would be am unusually  rating for NSC aggravation.

If you dont have a 100% or TDIU P & T award I suggest you apply for that and use the SSDI and OPM stuff as evidence.

Actually if the SSDI is Solely for your SCs and includes no other NSC disability, I feel the VA should award you 100% and , with some possible retro $ on that award, you could get a strong independent medical opinion   as to the Housebound status .

I assume you have no inservice nexus to the lung cancer?

Were you exposed to any chemicals in service  that could have caused it? Asbestos? Chromium? Nickel? 

I guess I have exhausted any avenue on this I can think of but others will chime in.

 

 

 

 

 

 

 

 

 

[Msgt Ret]

What I just scanned in is basically all the info I have. It is page 3 and states “your overall or combined rating is 100%”. Then it states that they have enclosed VA Form 21-8760 “additional Information for Veterans with Service Connected Permanent and Total Disability”

[Berta]

Thanks- It states you are 100% , P & T (because of the DEA award)in a combined 100% rating as TDIU.

I had no idea this was an appealed claim,  remanded from the BVA.

Maybe the BVA made a note of the SMC problem in the remand.

I still don't see how they can award HB. Others will chime  in.

You might want to go to the SMC forum here to understand when the VA should consider SMC.

Then again many here can rattle that all off  for you here -because this has been discussed here Many times....over 21 years.

[Gastone]

Sharp EYE Bronc.

I see no Single SC rated by itself as 100%, nor any mention of either an IU Award or "Inferred IU Award." The only other route for a Housebound Award would have been an actual Housebound Medical Questionnaire/Statement, submitted by your VMC or Private Dr. I see no mention of that either.

MSGT-R, easier to ask than go back and read the 5 pages of this post. What VA SMC S Award Document do you have as Evidence of the SMC S ever being Awarded? You don't appear to have ever been eligible for the (1) SC rated as 100% and others that have a seperateCSC of 60%. Do you have a copy of a VA Housebound Medical questionnaire completed for the SMC S Rating? Could you post a redacted copy of it?

[Buck52]

Ms berta they awarded the 100% overhaul combined rating  w/P&T   This means he is 100%   its been debatable that when a Veteran gets the TDIU P/T its a Statutory Rating that they give the Veteran SMC house bound  its in Bradley vs Peake  because he can't leave home for work...they never had this when I got my TDIU P/T   Its been in effect since 2008.

Now if he had a combined rating of 70% then he gets the IU but that rating don't meet the SMC S H.B. they don't inferr the IU.

THIS IS KINDA LONG  .

Bradley V Peake read what the DAV said in their Oct 29, Service Bulletin 

http://www.dav.org/veterans/documents/b ... 009-10.pdf 

Compensation and Pension Service Fast Letter 09-33:

Special Monthly Compensation at the Statutory Housebound Rate

 

38 U.S.C. § 1114(s) provides that SMC at the (s) rate will be granted if a veteran has a serviceconnected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of a service-connected disability or disabilities. VA's implementing regulation at 38 C.F.R. § 3.350(i) essentially mirrors the statutory language. Prior to the CAVC's decision in Bradley v. Peake , VA excluded a rating of total disability based on individual unemployability (TDIU) as a basis for a grant of SMC at the (s) rate. VA relied upon language in citing VAOPGCPREC 6-99, dated June 7, 1999, in which the General Counsel stated that a TDIU rating takes into account all of a veteran's service-con ected disabilities and that considering a TDIU rating and a schedular rating in determining eligibility for SMC would conflict with the requirement for "additional" disability of 60 percent or more by counting the same disability twice.

On November 26, 2008, the Court, in Bradley v. Peake , disagreed with VA's interpretation and held that the provisions of section 1114(s) do not limit a "service-connected disability rated as total" to only a schedular 100 percent rating. The Court found the opinion too expansive because it was possible that there would be no duplicate counting of disabilities if a veteran was awarded TDIU based on a single disability and thereafter received disability ratings for other conditions.The Court's holding allows a TDIU rating to serve as the "total" service-connected disability, if the TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to SMCat the (s) rate. The Court held that the requirement for a single "service-connected disability rated as total" cannot be satisfied by a combination of disabilities. Multiple service-connected disabilities that combine to 70 percent or more and establish entitlement to TDIU under 38 C.F.R. § 4.16(a) cannot be treated as a single "service-connected disability rated as total" for purposes of entitlement to SMC at the (s) rate. Based on the Court's decision in Bradley, entitlement to SMC at the (s) rate will now be granted for TDIU recipients if the TDIU evaluation was, or can be, predicated upon a single disability and (1) there exists additional disability or disabilities independently ratable at 60 percent or more, or (2) the veteran is permanently housebound by reason of a service-connected disability or disabilities.

This is what the NVLSP stated to congress: http://veterans.house.gov/hearings/Test ... .%20Abrams
The VA, under 38 U.S.C. § 1114 and 38 C.F.R. § 3.350 has a level of monetary benefits, described as Special Monthly Compensation (SMC). SMC benefits are paid in addition to the basic rates of compensation payable under the Schedule for Rating Disabilities. SMC is paid to compensate veterans for service-connected disabilities such as loss of use of a hand or a foot, impairment of the senses, loss of vision or hearing, and for combinations of severely disabling service-connected disabilities. While the basic rates of compensation are predicated on the average reduction in earning capacity, special monthly compensation benefits are based on noneconomic quality of life issues such as personal inconvenience, social inadaptability, or the profound nature of the disability.[1] 

A recent decision by the United States Court of Appeals for Veterans Claims (CAVC or Court) reveals that the VA has unlawfully limited the impact of a section of 38 U.S.C. 1114. The Department of Veterans Affairs, the veterans service organizations and the Congress should act now to implement this CAVC decision. 

The statute involved, Section 1114(s), mandates increased benefits for veterans who are so unlucky as to have a service-connected disability rated as total, and suffer from additional service-connected disability or disabilities independently ratable at 60 percent or more. This benefit is usually called SMC(s). 

Currently, a veteran entitled to SMC(s) without dependents is paid $320 more per month than a veteran entitled to a total evaluation ($2,993 as opposed to $2,673). The idea behind this benefit is that a veteran who has a service-connected condition that causes total disability and has significant other disabilities should be paid more than a veteran who just has the one disability. 

The problem is that for many years the VA implemented Section 1114(s) with a regulation that unlawfully limited the beneficial impact of the statute. The regulation, 38 C.F.R. § 3.350(i)(1), requires a veteran to have one service-connected disability rated as 100 percent disabling to be considered for SMC(S) benefits. This regulation, 38 C.F.R. 3.350(i)(1) states: 

[T]he 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, has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 

The language of the statute, however, requires total disability based on a single condition-not a single disability that qualifies for a 100 percent schedular evaluation. In other regulations, the VA has acknowledged that a service-connected disability that causes impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation is a total disability. See 38 C.F.R. §§ 3.340(a), 4.15, 4.16(a). 

In Bradley v. Peake[2], the Court of Appeals for Veterans Claims (CAVC) finally dealt with this issue. This veteran sustained multiple shell fragment wounds from a bobby trap in Vietnam. He is service-connected for thirteen compensable scars and 10 separate muscle group injuries. He is also entitled to compensation benefits for Post Traumatic Stress Disorder (PTSD). 

The veteran was granted total disability based on individual unemployability (TDIU) from March 25, 1983, until June 8, 1992, and then he was granted a 100 percent combined rating from June 8, 1992. Between 1971 and 2006, the VA made thirteen different adjudications to come to the above conclusions. 

The Board of Veterans' Appeals (BVA or Board) denied Mr. Bradley's claim for SMC(S) and he appealed that decision to the CAVC. The CAVC held that: 

Section 1114(s) does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent -it includes a disability that would support the grant of TDIU.

When a veteran has several service-connected conditions that combine to a 100 percent evaluation, if the veteran would be monetarily advantaged by a having just one service-connected condition support a total TDIU rating and the veteran has other service-connected conditions that combine to 60 percent, the VA is obligated to rate the case to maximize the benefits that can be paid to the veteran. This is true because under 38 C.F.R. § 3.103(a) the VA is obligated to render a decision which grants every benefit that can be supported in law.

Because SMC benefits must be granted when a veteran becomes eligible without need for a separate claim[3], any effective date must be based on that point in time when the evidence first supported an award of SMC, which may be well before the veteran raised this issue. See 38 U.S.C. §§ 5110(a), 1114(s); 38 C.F.R. § 3.400(o).

The Bradley decision should have a major impact both on current claims and claims that have been previously adjudicated. Many severely disabled veterans should receive significant retroactive payments. 

Source: V.B.N.