SMC S??

[adkins7b]

depression tdiu 50 percent sleep apnea just won tinnitus 10 percent is this smc s?

[Buck52]

Depression ?no not secondary to sleep apnea   your tdiu that means you can't leave home for work and you mention you have another 60%.

some of your  s.c. depression med's could be secondary to sleep apnea but you need a Qualified Dr to give is medical opinion on that.

but being your IU with another 60% qualify's you for the SMC S H.B.

But as I understand it now  when a Veteran is granted TDIU P&T that should qualify's him for the SMC S House Bound because the Veteran can't leave home for work   Howell vs Nickoson/ Peake

I never was granted the SMC S H.B. when I got TDIU P & T back in 2002 but I think the Regs has change on this Due the Howell Ruling!

Edited January 29, 2019 by Buck52

[adkins7b]

I won sleep apnea then i filed depression secondary won.. I am tdui soley of depression nod said something about secondary but the regulations dont say anything. I have it.

 

depression tdiu 50 percent sleep apnea 10 percent tinnitus. they told me file bilateral hearing the c p examer i guess put something related to service.

[FormerMember]

<<<<<<I won sleep apnea then i filed depression secondary won.>>>>>

Based on this statement, the Depression could only be secondary to the sleep apnea. VA would rate the Depression as TDIU but the ratings sheet is going to say the Depression is secondary to service-connected sleep apnea under §3.310. Based on that scenario, the SMC S is not attainable solely on a 100+60 basis. The sleep apnea for 50% would not be independently ratable from the depression. The use of the word 'secondary' may be incorrect or misleading. You could have two different disabilities with two different etiologies. You could have filed for the SA first and won. Then came back and filed the Depression and tinnitus as the 'second' batch of claims you've ever filed. 

 

[Unique11128]

I was just rated today 100 PTSD P&T I already was rated 60 for other conditions not related to PTSD and the rater without me filing for it granted me SMC S1 ..So if you have 100 plus 60 percent in multiple disabilities he should be good.. Btw how much is SMC S1 per month?

[Berta]

That is Great News Unique!!!

With 100% for one SC and 60 % or over for indenpedent SCs, they are supposed to grant SMC S without any problem. A veteran does not need to apply for it , with those ratings.

If they don't, they have committed a CUE.

These are the 2019 rates:

https://www.military.com/benefits/veteran-benefits/special-monthly-compensation-smc-tables.html

If they did not grant SMC S under the above criteria, that you had, the CUE has to be that they did not 'properly consider you for SMC.' As it is mandated by law.  My SMC CUE template is in our CUE forum.

 

 

 

[broncovet]

As Alex pointed out, to get statuatory SMC S, the disabilities have to be "seperate and distinct" from each other.  Remember, tho, there are 2 roads to SMC S, not just one.  Statuatory is one road.  

"Seperate and distinct" is one of those terms that VA gets to define, not necessarily Webster's dictionary, due to something called "Cheveron Deference" aka the Auer defense.  

And, I really dont know if secondary disabilities are "seperate and distinct" from each other, using VA's defination or not.  However, it sounds like VA says no, they are not seperate and distinct if one is secondary to another.  Maybe Va's interpretion of seperate and distinct has been tested in court for secondary conditions, but maybe your attorney could argue that depression and sleep apnea are "seperate and distinct" EVEN if they are secondary to one another.  Even tho depression and sleep apnea are apparently related in your case, they do have seperate diagnosis, and very different treatment options.  Your attorney, if you elect to hire one, may or may not be interested in pushing this envelope, but I can see this interpreted either way.  Of course, the Vet is SUPPOSED to get the "benefit of the doubt" with differing interpretations, but that conflicts with the Chevron/Auer defense where the Agency interpretation would probably stand.  

If I recall there is a major case in the works that could resolve this apparent conflict between Auer defense and benefit of the doubt.  If this case were ruled in favor of Vets, then you could have a winner winner chicken dinner.  It would probably take a US Supreme Court to overturn Auer/Chevron in Vets favor, but that does not mean YOU would have to appeal to the Supreme court.  However, an aggressive attorney "may" be interested in making a name for himself/his law firm if he were to succeed in overturning auer in Vets cases at the Supreme court.  You have a long ways to go before you get to the supreme court, the first step would be to convince a lawyer to take your case, probably starting at either the VARO/BVA/ or cavc levels, progressing up to the Federal and then the supremes.