Cue or New, SMC confused

[ruby]

I have several questions and I’m confused.  Almost 10yrs ago I won a DRO hearing.  He seemed to get secondary diseases.  I asked that he connect my arthritis which he did.  I ask him to sc it secondary to another issue but I was not requesting a monetary rating.  .  Now almost 10 yrs later I need a rating.  11 issues were sc with O rating.

My xrays were not great then and they are really bad now.  I was service connected for lumbar spine arthritis with spondylitis changes   Then is was sc for left and right shoulders,elbows, wrist, hands, knees.  Then cervical c6, c7  radiculopathy left and right.

My xrays now show cervical c4 and 5 radiculopathy.  I have required injections into my fingers and wrist for pain.  I have limited range of motion of my left wrist shoulders, knees have been injected, ankles are stiff at time with limited range of motion.  I have gotten 28 steroid injections in the past 8 years. My last one resulted in a steroid flare which does the exact opposite of the steroid so I have been himebound since nov 9, I travel by wheelchair for the doctors. I can’t walk without severe pain.  My newer mri shows spondylitis L1-5,  L3-4-5 & S1 bulging disc. L4-5 herniated.  I have seen a neurosurgeon and I’m awaiting a plan of action.  They want to do to my.  cervical Its bad too. I’m starting to develop neurological problems.  My recent dx by the radiologist is Right Leg Radiculopathy.  I’m on the pain program for my back for the last 7 years.  I have the radiculopathy in my Left too.

i really need SMC to help me hire someone to help during bad times with personal hygiene and housework. Since I’m pretty much bedroom bound my house isn’t as dirty but it hasnt been clean since nov.

i have been lucky with the VA that I have shown them the evidence for what I’m asking and I shown them how it was connected.  I don’t understand SMC, I know they are suppose to give SMC when you have a certain rating.  That’s all I understand.  I currently don’t have that rating.

Question should I just file for increase based on my condition deteriorating.im 100% now

i understand sleep apnea can be secondary along with IBS to PTSD.

Question would I succeed better if I go for increase and later for the secondary.

now the possible cue.  I totally missed this this when I won my award in was very excited.  I submitted evidence for the dro claim before I got the hearing  and another new claim at the same time.

because I was awarded what I ask for and 100% secular I didn’t pay attention to the fact this info wasn’t included with the decision and never mention in the award.  So do I cue or just refile with a back date of 2006.  They mentioned I had prostrating headaches but never sc.   I just ignored this because of the 100%.  Carlie told me not do but I didn’t listen.  I miss you girl

any help is appreciated.

 

 

 

[Berta]

We have considerable information here on SMC , and much discussion.

This is a basic rendition from Hill & Ponton law firm:

https://www.hillandponton.com/va-benefits-special-monthly-compensation/

You might be eligible for the SMC HB award....(Housebound)

This pdf in the link from our member Richard is still working and explains it all.

https://community.hadit.com/topic/71886-trying-to-understand-the-requirements-for-smc-s/

I think you might want to try to get some of those SC  "0"s up higher as well.

 

Edited January 23, 2019 by Berta

[broncovet]

There are 2 ways to get SMC S (housebound);

Statuatory SMC S, which requrires a single 100 percent plus an additional combined 60 percent, seperate and distinct from each other.  We dont know your ratings so we dont know if you are eligible for this or not.  

"Housebound in fact".  SMC S .  This requires a doctor statement that says you are "substantially confined to the premises".  It sounds like, based on your post, you should get this, as a minimum. 

Moving on to the next step SMC L, aka "Aid and Attendance".  This normally requires a doc statment that says you need help with eating, toileting, dressing, bathing and other activities of daily life.  

You can also get SMC for "loss of use", such as not being able to use your legs, arms, blindness, etc.  

I suggest you apply if you have not already.  It may require a comp and pen exam, unless there is already evidence in your file.  

In your situtation, filing a Cue is probably not recommended UNLESS:

a.  You have a representive (such as a Veterans lawyer) or very knowledgeable VSO who can/will go to your house and help you. OR

b.  You are willing to do much study and learn 38cfr.s for yourself as Cue often requires specifying the "regulation" (38cfr number) which you allege VA violated.  For example you can allege VA violated 38 cfr 4.6, but you have to explain how they violated that regulation.  

[Buck52]

Question?

If a Veteran is TDIU P&T SAY USING THE EXTRA SCHEDULER RATING SYSTEM  38.415 (a) 416 (b) @ a 90%combined rating and was inferred the IU. and had it 16 years  and  since then in 2015 the Veteran has a Separate Claim Awarded PTSD 70% S,C, Rating and is inferred the SMC S  H.B.....Does this make him MOOT on the IU?  because he now has a scheduler 100% rating.??

Anybody know for sure???

Edited January 23, 2019 by Buck52

[Berta]

 "is inferred the SMC S  H.B"

Buck the SMC mandate regards the rating sheet.

The VA is mandated to infer SMC S whenever the evidence warrants it-

That regards 100% or TDIU plus 60 or more for an independent additional SC = SMC S.

I have never seen Housebound as an 'inferred" issue.Until I found the BVA case below.

HB has no disability  rating of it's own nor diagnostic code that would trigger the VA to "infer" it.

I have never seen anything at the BVA whereby the veteran filed CUE on lack of inferring Housebound.But the ase below contains a CUE on HB.

In my SMC CUE I focused solely on the 100% plus 60 which was evidence in a 1998 award letter. I also added that the veteran could not drive, nor walk more than about 100 yards without great fatigue- etc etc etc.

The Neher VARO awarded both SMC under 100% plus over 60% and also awarded Housebound- only one payment ,not both.

My point is if a veteran is eligible for SC S due to the 100 plus 60 or more-that evidence is right on their rating sheet.It is obvious to the rater, to th vetera and to their VSO.

The rating sheet I filed SMC  CUE on had 80% 1151 stroke (which they corrected under Nehmer to 100%-I forgot they actually awarded that CUE as well as the 2003 CUE, 2004 CUE and something else I cued,

and right on the rating sheet it also states 100% SC PTSD EED 1991.

100% SC plus the over 60 % 1151 ewualed the SMC S award.

I had added Housebound to the claim, with medical evidence of that, but Housebound was not infer-able on the rating sheet, therefore no CUE existed regarding that.

Broncovet made that clear- if a vet claims HB, with TDIU or 100%  the VA will give them a C & P exam unless the veteran shows them that the VA has evidence of HB aready.

Prior to my husband's death the Syracuse VAMC where he was sent because the Bath VAMC had severely nidiagnosed his stroke as a ear infection, and when I demanded a CT scan they discovered it was a stroke-

that next VAMC Syracuse told me he would never walk again and I should be considering a nursing home for him-(the 100% SC PTSD award came 3 years after that-after he died- but with 30% SC in his lifetime, and we live 20 minutes from the Bath VAMC Nursing home, he was not eligible to be sent there.Our home could not possiby even be upgraded to handle the size of the wheelchair he was in.

Long story- I said BS to that, fought for immediate physical therapy and 3 weeks later he could walk 3 steps  without falling so they discharged him- he crawled for the next three weeks, than balanced himself upright between 2 narrow hall walls we had and he definitely could walk again- but not normally- his balance was always off.   He could not drive, his vision had been altered by the stroke, he could not handle money or change , could hardly use a phone and could no longer use the PC.He got lost on a InHouse program day trip and also the VA van picked him up ad brought him homw again for the VA Day Treatment program

The VA had all of this information when I raised the HB claim. A VA Neuro gave him a C & P exam, and I made sure she read the MRI and she declared him 100% P & T due to the 1151 stroke, so did 2 other VA doctors.

Even though this info was in his medical record and C file, with other HB evidence I sent, the VA really could not legally 'infer "HB in the 1998 decision. It was not a legal issue- and as Broncovet stated - HB is a medical issue.

If you feel they should have inferred HB to you , you could try to CUE it but I think they will deny the CUE.

I suggest you read some of the BVA decisions regarding HB.

However this vet did get SMC S HB award but filed CUE for better EED.It was denied.

It does seem like the VA had ,in the past  'inferred' the HB status due to a 2009 100% award  that involved the veteran's very complex disability picture-The EED period he cued offered no medical evidence to warrant HB at all.

BVA even questioned the  apparent 'inferred' HB that  the RO gave him-the 2009 SC HB award, -but did not take it away.This veteran had multitude of SC disabilities.But BVA said there was no medical evidence of HB however.

https://www.va.gov/vetapp18/files5/1828096.txt

A facinating ,but long read.

 

 

 

 

 

 

 

 

Edited January 23, 2019 by Berta

[seminoles]

55 minutes ago, Berta said:

 "is inferred the SMC S  H.B"

Buck the SMC mandate regards the rating sheet.

The VA is mandated to infer SMC S whenever the evidence warrants it-

That regards 100% or TDIU plus 60 or more for an independent additional SC = SMC S.

I have never seen Housebound as an 'inferred" issue.Until I found the BVA case below.

HB has no disability  rating of it's own nor diagnostic code that would trigger the VA to "infer" it.

I have never seen anything at the BVA whereby the veteran filed CUE on lack of inferring Housebound.But the ase below contains a CUE on HB.

In my SMC CUE I focused solely on the 100% plus 60 which was evidence in a 1998 award letter. I also added that the veteran could not drive, nor walk more than about 100 yards without great fatigue- etc etc etc.

The Neher VARO awarded both SMC under 100% plus over 60% and also awarded Housebound- only one payment ,not both.

My point is if a veteran is eligible for SC S due to the 100 plus 60 or more-that evidence is right on their rating sheet.It is obvious to the rater, to th vetera and to their VSO.

The rating sheet I filed SMC  CUE on had 80% 1151 stroke (which they corrected under Nehmer to 100%-I forgot they actually awarded that CUE as well as the 2003 CUE, 2004 CUE and something else I cued,

and right on the rating sheet it also states 100% SC PTSD EED 1991.

100% SC plus the over 60 % 1151 ewualed the SMC S award.

I had added Housebound to the claim, with medical evidence of that, but Housebound was not infer-able on the rating sheet, therefore no CUE existed regarding that.

Broncovet made that clear- if a vet claims HB, with TDIU or 100%  the VA will give them a C & P exam unless the veteran shows them that the VA has evidence of HB aready.

Prior to my husband's death the Syracuse VAMC where he was sent because the Bath VAMC had severely nidiagnosed his stroke as a ear infection, and when I demanded a CT scan they discovered it was a stroke-

that next VAMC Syracuse told me he would never walk again and I should be considering a nursing home for him-(the 100% SC PTSD award came 3 years after that-after he died- but with 30% SC in his lifetime, and we live 20 minutes from the Bath VAMC Nursing home, he was not eligible to be sent there.Our home could not possiby even be upgraded to handle the size of the wheelchair he was in.

Long story- I said BS to that, fought for immediate physical therapy and 3 weeks later he could walk 3 steps  without falling so they discharged him- he crawled for the next three weeks, than balanced himself upright between 2 narrow hall walls we had and he definitely could walk again- but not normally- his balance was always off.   He could not drive, his vision had been altered by the stroke, he could not handle money or change , could hardly use a phone and could no longer use the PC.He got lost on a InHouse program day trip and also the VA van picked him up ad brought him homw again for the VA Day Treatment program

The VA had all of this information when I raised the HB claim. A VA Neuro gave him a C & P exam, and I made sure she read the MRI and she declared him 100% P & T due to the 1151 stroke, so did 2 other VA doctors.

Even though this info was in his medical record and C file, with other HB evidence I sent, the VA really could not legally 'infer "HB in the 1998 decision. It was not a legal issue- and as Broncovet stated - HB is a medical issue.

If you feel they should have inferred HB to you , you could try to CUE it but I think they will deny the CUE.

I suggest you read some of the BVA decisions regarding HB.

However this vet did get SMC S HB award but filed CUE for better EED.It was denied.

It does seem like the VA had ,in the past  'inferred' the HB status due to a 2009 100% award  that involved the veteran's very complex disability picture-The EED period he cued offered no medical evidence to warrant HB at all.

BVA even questioned the  apparent 'inferred' HB that  the RO gave him-the 2009 SC HB award, -but did not take it away.This veteran had multitude of SC disabilities.But BVA said there was no medical evidence of HB however.

https://www.va.gov/vetapp18/files5/1828096.txt

A facinating ,but long read.

 

 

 

 

 

 

 

 

I am just trying to make sure I understand you correctly, IF a veteran is already IU PT and then receives an additional single rating of 60% then the rater is supposed to infer the SMC housebound?  If that is true, can you show me exactly where I can cite that? 

[Berta]

No that is not exactly what I mean-I only found one BVA case above that seemed to 'infer' HB and the BVA even questioned that.

If the VA fails to infer SMC S (100% plus 60%), that is a CUE.

", IF a veteran is already IU PT and then receives an additional single rating of 60% then the rater is supposed to infer the SMC housebound?"

The VA is then supposed to infer SMC S DUE TO the 100% -plus 60%

 

https://www.hillandponton.com/va-benefits-special-monthly-compensation/

Both types of SMC S are different. They ony pay for one theory of  (S)entitlement even if the vet has evidence of both theories.

My SMC CUE is here in the CUE or SMC forum.It shows the evidence I used to get the  SMC award.