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]

28 minutes ago, Buck52 said:

Msgt Ret

Make sure they never paid you for the SMC's?  check the rating pay tables on what you are S.C For.

  if you just been getting your regular pay on 100% with dependents  make sure there not adding the SMC's to that. about 34700 extra with spouse and 103 extra for the K  ABOUT 450.00 $$ ON TOP OF YOUR 100%

Some times the raters don't catch the SMC Criteria and don't grant it.

The severity of the condition is what they look at  if it is rated high enough that would change the outcome of your compensation  With your other ratings combined up to 60% past 100% then its mandatory they assist in you meeting the SMC Criteria...they have a SMC RATING TABLE they look at to see if you meet the criteria for certain SMC s  K OR S h.b. or what ever letter your SMC meets that criteria for.

I was reading something the other day that when a veteran has a combined rating of 70% and used the 4.16 to meet the critera for IU   THEN HE IS NOT ELIGIBLE FOR SMC S EVEN IF HE HAS ANOTHER CONDITION ABOVE THE 60%

I need to research this more.

What is the 4.16 criteria for IU or can you tell me where to look

[Buck52]

CFR 38  4.16 (a) &(b)   b would be the one they refer to.

§4.16   Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

(Authority: 38 U.S.C. 501)

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996; 79 FR 2100, Jan. 13, 2014]

 I notice that you get military retirement pay? could it be they are withholding part of your comp pay because of the Military pay? it says you can't recieve both retirement pay and compensation pay.

it should let you know on e benefits what they are paying you for and if you get the SMC S it should show you that...then any deductions they make.

[Berta]

Thanks for giving us more important information.

" I had to stop work in 2012 because of my back and legs. I began SSD in 2012 and OPM disability retirement in 2013. I was told that I would not be able to return to gainful employment."

Was the SSDI solely for the service connected disabiities?

If so, was the VA aware of your SSDI award when they made their 2012 decision?

 

"As of May 2012 I stayed at 90% but individually unemployable and being paid at the 100% rate. No further exams"

 

Do you have a specific award of TDIU Permanent and Total, or did they state that in part of the above decision somewhere that is not posted here? I didnt see that statement as to TDIU and P & T in the info you posted.

If you were awarded TDIU P & T then it would make sense that they considered you for SMC HB, and if they considered you and then denied, it could have been  appealed.

If the VA knew of the SSDI award and if it was solely for the SC conditions, and they awarded you TDIU P & T and did Not consider SMC, that is a CUE.

VA acknowledges SSDI awards in their evidence list.

The decision says you have oe dependent, have they paid you for that dependent? 

A P & T award grants CHAMPVA and Chapter 35 benefits to your dependents.

We need to see the TDIU P & T award, the evidence list , and also the rating sheet.

I won a SMC CUE based on a rating sheet. It was obvious that VA had made a significant error.

The decision never considered my husband for SMC. It is in our CUE forum.

Do you receive full concurrent receipt under CRDP?

 

 

 

[Berta]

We have a lot of CRDP CRSC info here- this is one link.

https://www.military.com/benefits/military-pay/special-pay/comparing-crsc-and-crdp.html

As the decision you posted says, they gave a medical rationale for the ratings etc.

I say "rating sheet" , as to what Diagnostic codes they used. 

They might have even messed up on the TBI rating. VA was found to have erred on multiple TBI claims in the past.

Did a VSO or vet rep handle your claim?

Did you appeal the 2012 decision?

If not that is OK because it could hold a valid CUE, you could file for now- but we need the info I mentioned above.

 

 

 

[Buck52]

As I understand it if a Veteran is receiving IU on the 4.16 (b)at a combined rating of 90% and has another seperate sc condition that warrants the SMC   then yes he meets the criteria for the SMC S

But if he is getting the IU ON THE 4.16 (b) and is just getting it on combined ratings on a 70%combined rating then he don't meet the SMC S Criteria.

  90%combined veterans USING THE EXTRA SCHEDULER 4.16 (b) would meet the SMC S but I think they have a holding period for the 70% veterans or below the 70% combined ratings. that get the IU.

Now if that veteran is P&T that may lift him up to the SMC S? Depends on how severe the disabilities is and some times the raters just look at the % and not the severity of the disability.

Edited April 19, 2018 by Buck52

[broncovet]

Buck..this Veteran has already been awarded SMC S Housebound, according to the decision he posted.  However, in the "payments" portion of the decision, housebound wasnt included, and an effective date for housebound was not given.