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  • 14 Questions about VA Disability Compensation Benefits Claims

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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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ammawa

Special Monthly Compensation

Question

What are some of the ways you can qualify for this benefit...what about chronic sciatica  and not being able to ambulate around house...difficulty keeping up with and taking care of kids...and chores around house...wife has alot on her plate...can she be paid to stay home and take care of the house and kids

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On 4/2/2019 at 11:56 AM, ammawa said:

What are some of the ways you can qualify for this benefit...what about chronic sciatica  and not being able to ambulate around house...difficulty keeping up with and taking care of kids...and chores around house...wife has alot on her plate...can she be paid to stay home and take care of the house and kids

Is your wife a veteran? if not she would not qualify for any veteran benefits based on her medical history, unless she is so disabled that she requires  aid and attendance.  The veteran would have to apply for this benefit and provide medical evidence that she requires assistance in daily living activities.  The va doesn't pay anyone to stay home and take care of the house and kids. Even veterans with chronic sciatica  would have to have it rated, the highest rating for sciatica is 80% which is not enough to support any family.

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SMC is complex and there are many ways to qualify.  The short version is you may qualify IF:

1.  You are housebound.  

2.  You need aid and attendance. 

3.  You have "loss of use" of a body part.  

For more on SMC,  read "Mr Potaotoe head":

https://asknod.org/2013/02/27/special-monthly-compensation-what-is-it/

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If your on TDIU then the SMC-S H.B. is  up for grabs.

based on the fact you can't leave home for work..k  that makes you House Bound   via TDIU.

The Court also held that a combined 100 percent rating cannot suffice for a “service-connected disability rated as total” for the purpose of granting entitlement to special monthly compensation (SMC) at the statutory (s) rate.  (Note: 38 U.S.C. § 1114(s) provides that SMC (s) will be granted if a veteran has a service-connected disability rated as total, and has additional service-connected disability or disabilities independently ratable at 60 percent or more.) The instruction in 38 C.F.R. § 4.16(a) to treat multiple disabilities as one is an exception to the general rule under 38 C.F.R. § 4.25(b) to rate disabilities separately and is only applicable to claims for a rating of total disability on the basis of individual unemployability (TDIU).

However, the Court also held that section 1114(s) does not limit the requirement for a “service-connected disability rated as total” to only a schedular rating of 100 percent, but may be satisfied by a TDIU rating based on a single disability.  

Impact on VBA:

M21-MR, IV.ii.2.H.46.a will be revised to comply with the Court’s decisions.  No regulatory revision is required.  In view of the Court’s holding, it must be determined if TDIU entitlement was based upon a single disability for the purpose of considering entitlement to SMC at the (s) rate.

Summary of the facts and Court’s reasons:

The veteran sustained multiple shell fragment wounds (SFWs) to his chest, legs, arms, and right ear from a booby trap explosion in Vietnam.  In December 1969, he filed for VA compensation for multiple fragment wounds (MFWs) of both legs, arm, left chest and a piece of his right earlobe that had been “taken off.”  Following VA examination, the regional office (RO), in November 1970 granted service connection for SFWs of the left ankle with a 10 percent evaluation, tender and painful scars of his left thigh (with retained foreign body) with a 10 percent evaluation, and multiple scars of both legs, arms, and left lower chest, which were rated noncompensable.  Later RO decisions in 1971, 1976, and 1977 confirmed the original ratings. 

In July 1983, the RO granted a 20 percent compensation rating for SFWs of the right buttock, a 20 percent evaluation for the left buttock, and 10 percent rating for the right quadriceps, effective March 25, 1983.  Service connection was also granted for post traumatic stress disorder (PTSD) with a 30 percent evaluation.  In 1985, the RO assigned a 10 percent evaluation for multiple scars of the legs, arms, and left lower chest.  In 1991, a 70 percent rating for PTSD and a TDIU evaluation was granted, effective December 1987.  Service connection was granted for SFW residuals of the right knee and gunshot wound (GSW) of the right shoulder with separate 10 percent evaluations effective December 1987. 

The Board of Veterans’ Appeals (Board), in 1997, granted an effective date of March 25, 1983, for the 70 percent evaluation for PTSD and the TDIU rating.  The Board found no clear and unmistakable error (CUE) in the previous decisions from 1971 to 1982.  The RO, in 1999, granted separate 10 percent evaluations for the scars of the lower chest, left ankle, right elbow, right inner leg, left forearm, and left elbow from March 1994.  In 2003, a 10 percent rating for scars of the buttocks and right thigh was given, as well as a noncompensable rating for the scar of the right ear, effective February 2000.  A 20 percent evaluation for a left axillary area condition and 10 percent ratings for scars of the left forearm, right forearm/arm/wrist, left ankle, left thigh, and lateral chest were granted in 2005.

The Board, in March 2006, denied the veteran’s appeal for earlier effective dates, ratings for multiple scarring and muscle injuries, SMC at the statutory housebound rate, and service connection for chronic pain syndrome. 

The veteran argued before the Court that because each and every injury existed upon his discharge from service, the effective date for all service-connected scars and muscle injuries should be November 21, 1969, the date of the original service connection claim.  He contended that the ratings for scars and injuries awarded after November 1970 constituted part of his initial claim, and were not new claims for increased compensation. 

The Court rejected the veteran’s argument that his original claim remained open, concluding that the 1970 RO decision sufficiently addressed the original claim for disabilities arising from the booby trap explosion for him to deduce that the claim had been adjudicated.  The Court stated that the unappealed decision was final and could only be attacked on the basis of CUE with regard to its effective date. 

Alternatively, the veteran argued that the later decisions from 1983 through 2005, which awarded ratings for additional scars and muscle injuries, demonstrated a difference of opinion among the ROs and warranted revision of the 1970 decision pursuant to 38 C.F.R. § 3.105(b) to reflect the additional ratings as having an effective date of November 1970.  The Court stated that the veteran read language into the regulation that was not there.  The Court agreed with VA’s position that § 3.105(b) is implicated only when VA has the opinion that a revision or amendment is warranted before a decision becomes final.  No procedural rights are provided to a claimant to demand referral to the VA Central Office.  The only recourse to revise the November 1970 decision is through a CUE attack.  The Court held that it had no jurisdiction to review a decision made by VA under § 3.105(b). 

Regarding the veteran’s SMC argument, the Court held that a 100 percent combined evaluation cannot satisfy the requirement for “a service-connected disability rated as total” for the purpose of considering entitlement to SMC at the statutory housebound rate. 

The Court also held that a TDIU rating based on a single disability may satisfy the statutory requirement for a total rating for entitlement to SMC at the (s) rate.  It found that the phrase “a service-connected disability rated as total” contains no restriction to a total schedular rating and no exclusion of other total ratings, such as TDIU.  The Court noted that restrictive language precluding a TDIU evaluation from satisfying the “total” requirement of section 1114(s) was dropped from the implementing regulation, 38 C.F.R. § 3.350(i), in 1995 following a General Counsel opinion that held that section 1114(s) did not authorize such a restriction. 

In considering the circumstances of the veteran’s case, the Court indicated that a TDIU rating for PTSD alone would entitle the veteran to SMC benefits.  Thus, VA should have assessed whether the TDIU rating was warranted on the basis of PTSD alone before substituting a combined total rating for his TDIU rating, as a finding that the veteran’s PTSD is sufficient, on its own, to warrant a TDIU rating, would mean that the veteran is also entitled to SMC.  The Court vacated and remanded the issue for the Board to consider whether the veteran is entitled to a total rating based upon PTSD alone to determine if entitlement to SMC at the (s) rate is in order. 

The Court rejected the veteran’s arguments that the August and September 1971 VA examination reports constituted informal claims that were unadjudicated.  The Court also found that the veteran’s reliance upon Jones (Charles) v. Principi, 18 Vet.App. 248 (2006) to support his argument that each muscle injury should be assigned a separate rating to be misplaced.  The Court noted that it held in Jones that “each group of muscles damaged” is entitled to separate ratings, not each muscle damaged. 

The Court did find that the Board failed to provide adequate reasons and bases in denying service connection for chronic pain syndrome and also failed to discuss the impact of Jones in determining whether the veteran’s scars warranted individual ratings.  These issues were remanded for compliance with its opinion. 

 

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That just shows you how difficult it is to go back and attempt to revise old VA rating decisions no matter how much common sense is involved.  This guy that Buck exampled was obviously low balled back in 1970, but because he did not immediately appeal his rating he was out of luck for the EED.  For a vet to get a CUE that would grant an EED way back to 1970 is almost a miracle.  

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