RAMP: SMC S denial

[broncovet]

I just got the envelope yesterday.  SMC S was denied "even tho" my doc gave evidence that I was homebound, and, of course, I have not worked since 2003, and should be eligible for SMC S per Howell.

(From Alex website)

https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

In relevant part:

Quote

 The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all.

 

I noticed that the M21 manual "includes" references to Howell, but, that does not mean this rating specialist read it.  He also did not read my evidence.  Of course, I knew that GS9 rating specialists dont have the authority to award when it could mean 5 or 6 figure retro's, so its off to the BVA I go.  

I am considering Berta's "cue method" even when the decision is appealable, since it is cue to not adjuticate smc s, whenever a single 100 percent is awarded (according to M21 Mr).  

[Buck52]

Sounds like broncovet is going to need to spoon feed these people!!! 

or teach them to read.

[broncovet]

Berta...

    I have "retyped" the 2009 VARO decision reasons and bases, which I posted above, relevant to SMC S.  .  I will try to find the "evidence" list for that decision.  However, of course, the March 2015 doc exam evidence could NOT have been in the 2009 decision six years later.  

    I think the VA is largely "avoiding" Howell implementation, as much as possible for VERY good reasons.  This should mean every VEteran who gets tdiu should get SMC S, per Howell, at least with "my" interpretation:  How can you "leave the home to earn an income" when you are "unable to maintain SGE" due to SC conditions?   In other words, if you cant work, you cant leave the home "for work", either!  Why would you leave the home "for work" if you were unable to work due to sc conditions?   This is "one" of the many interpretations I hope will be covered by the upcoming Kizor vs Wilkie supreme court case.  

     https://www.scotusblog.com/case-files/cases/kisor-v-wilkie/   The benefit of the doubt conflicts with Chevron/Auer defense, because the agency can simply interpret its own regulations unfavorably to the Veteran.  

[Buck52]

broncovet  even though you had mention to them that you was not entitled to the SMP anymore after you married, if they didn't change that  this may give you some problems? BUT MADE IT CLEAR YOU DON'T HAVE TO PAY IT BACK.

I bet they try to use that against you as you were SMP , Even if they waved the 6000 you owed   its the rating criteria that should have been change back then to S.C. and not kept SMP??

go back look in your records to see if they made this change (what date?) and that will probably be your EED

its very important you have evidence to this change...smp don't meet the criteria for the SMC S H.B.  you need to show as your evidence on record when they made you S.C.

When was your S.C. AT 100% For Hearing loss? and 60% S.C.for another separate condition at the same time you were rated for the Hearing loss?

IF YOU CAN SHOW THESE WERE S.C. AT THE TIME YOU WERE RATED  THEN I don't see a problem getting the SMC S H.B....ALSO THE CORRECT EED.

[broncovet]

Berta...

    The 2009 VARO decision has been appealed, and I won an earlier effective date and got remanded for smc.  It took the VA 3 years to complete the remand.  Of course, it was denied on remand finally in 2012.  I appealed the 2012 decsion also, and won tdiu, finally, in 2017.  

Buck...Good points.  You see, in 2004-2006, I was getting NSC pension.  So, I was considered disabled, but NSC disabled.  

That changed, in 2017, when the board granted TDIU from 2004-2006.  This means, of course, Im service connected disabled for that period.  What they said was NSC it was decided by the board was SC.  The 2017 BVA decision, which granted tdiu from 2004-2006, is what "changed" it to SC.  You have to be unable to work to get pension, but unable to work due to sc disabilites to get TDIU.  The 2017 board decision mentioned my doctors "homebound" report, but they declined to adjuticate "smc s housebound".  

Currently, Im appealing the effective date for TDIU and am at the CAVC for that.  

[Berta]

 "am considering Berta's "cue method" even when the decision is appealable, since it is cue to not adjuticate smc s, whenever a single 100 percent is awarded (according to M21 Mr). "

Broncovet ., what I said is in this very old hadit post (2006)below-***

My CUE was based on the fact that the VA had not considered obvious medical evidence ( specifically a 1998 rating sheet which my stupid vet rep told me not to NOD)-

and the CUE was based on their failure to consider SMC, in light of documented evidence on the rating sheet.

The VA had previously awarded posthumously , 100% SC for PTSD.They did not at that time consider SMC, nor -in my opinion, should have. Maybe they made a statement to that affect on the award letter- I will check.

It was my husband's 1151 stroke that warranted 100% plus over 60% as well as Housebound due to the stroke, that VA had caused. ...Obviously a SMC scenario-

I noticed I stated this in the above 2006 reply here:

"I feel vets who have been awarded SSA disability and who also feel they qualify for SMC awards should look through their SSA records as SSA might have already made determinations in their SSA award that could help support VA SMC."

I never did that- maybe I should have- it might help you-

I mentioned here before that my husband had two separate SSA awards.The SSDI stroke award and then upon Reconsideration the award was changed to SSDI solely for PTSD,with a far more favorable EED.

My husband had told SSA he had SC PTSD and also the stroke but their decision never considered his PTSD. I went to the Corning NY SSA office and asked if I could peruse their criteria for determining disability and found they had made a 'clear and unmistakable 'error-by not considering his PTSD at all.I was allowed to xerox a few parts of their handbook ,used it as evidence, made appointment with a SSA lawyer and ,long story, he succeeded in the SSDI PTSD award.

The lawyer said he could not help and we would never succeed in the reconsideration request.

I called him up a few months later and told him he lost 4,500- what would have been his fee from the retro.( I think-20%)

We ended up having a long talk about PTSD and he said he would never look at a PTSD SSA claim the same way again.

(What got me was that when we were at his office , he did not even want to see the evidence I had used for the reconsideration. My husband was upset by the whole thing and told me I should have never even filed the reconsideration request- and wanted me to burn the evidence in the woodstove....but I am not easily intimidated by negativity. In the long years since this happened, I learned that vet reps and VSOs etc, can often have the same attitude, and discourage veterans or their survivors without having a single clue on what they are talking about.- such as my former vet rep who advised me not to file a NOD on the 1998 award letter.

The CUEs I filed on it, to include the SMC CUE,  were awarded in 2012, and it is probative to another  CUE I have pending now.

Those older rating sheets contained a lot of info, or in my case, a lack of it.

The 1998 1151 award letter was for DIC but they failed to even mention or rate the prime cause of my husband's death, IHD. It would have been NSC in those days, but this was the additional CUE Nehmer had to resolve, because I had an AO IHD claim by then 2010. Nehmer resolved and awarded that CUE as well. AO IHD EED was Nov 1988.

I regret I am often repeating stuff I already posted here long ago , but you never know how it could help a new member or a guest.

 

 

 

 

 

https://community.hadit.com/topic/3293-smc/

***"If you mean Special Monthly Cmpensation-

 

SMC is mandated in M21-1 as an "inferred" issue in all decision where the evidence suggest possible entitlement-in cases of service connected disabilities to include Section 1151 disabilities.

 

All of the SMC criteria are found in 38 USC 1114 and also 38 CFR 3.350.

 

There are many situations that call for the SMC award :

 

Example: the SMC "S" award - one SC 100% disability plus additional and separate SC disability at 60% rating or higher = SMC "S" in addition to regular 100% comp rate.

 

Loss of use of creative organ (ED) 38 CFR 3.350(a)(1) ( about $84.00 ?)someone will check this amount here

 

Atrophy of ovary-SMC "K" award same as above

 

PTSD, loss of use of both feet ,plus need for A & A, -the VBM 2005 gives this example-single vet- $5,803 per month Special Monthly Comp rate ( which accounts for 100% PTSD, 100% under DC 5110(38 USC 1114 L) and also the vet requires aid and attendance as he is a danger to himself. This is the SMC R-1 award-

I have a claim in on this award-the rate is 2005 rate- it is higher now-

 

The vet must qualify by medical evidence for the SMC "0" award plus the A & A award , and then VA should consider the vet for the higher level- R-1 award.

 

In Marlow V. Brown the VA had failed-in a 1948 decision, to consider and award the vet proper SMC. A BVA decision had found him entitled to SMC "M" in 1948.

 

The vet filed a CUE claim-in 1989 - and the CAVC agreed and the vet received retro "0' award back to 1948.

 

 

Also SMC cases at the BVA give good insight on how these awards are determined.

Solid medical evidence and often statements of family members help these claims.

 

I feel vets who have been awarded SSA disability and who also feel they qualify for SMC awards should look through their SSA records as SSA might have already made determinations in their SSA award that could help support VA SMC.

 

If the VA does not consider or does not award any vet who has possible entitlement for SMC,

based on the medical evidence of record, the vet should NOD that decision.

 

VBM 2005 edition and rates Page 347 NVLSP (Updated rates at the VA web site) "

Edited April 15, 2006 by Berta

 

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Edited February 24, 2019 by Berta
added more

[Berta]

PS- The mandate is surely mentioned in any VBM from NVLSP you might have Broncovet.

I copied the page it was on in the 2005 or 2006 VBM, and used it as legal evidence for my SMC CUE along with the 1998 rating sheet. I might have used M21-1 as well...but that was all the evidence I needed.