SMCs for TDIU rating 3 yrs ago

[Nvet]

Hello,

I received a TDIU rating for Depression in 2015. In addition, I had 40% for my back, 30% Migraines, and 10% allergies. I was not considered for SMCs. Any advice on how to proceed to get SMCs and back pay? Thanks

[broncovet]

If you think you meet SMC S, then file for it.  There are 2 ways to get it:

1.  100 percent plus an additional 60 percent, seperate and distinct.  

2.  Housebound "in fact", where your doctor says you are substantially confined to your premisis due to sc conditions.  

     

[GeekySquid]

5 hours ago, Nvet said:

Any advice on how to proceed to get SMCs and back pay? Thanks

@Nvet

Since you did not include a lot of detail about your current claims I am going to suggest you order your C-file NOW and comb through it thoroughly. You want all treatment records, in service events, IMO's and non-va med records if any. You need proper buddy statements in Sworn Declaration format, do not use the VA form for statement in support of claim. Read the Veterans Law Blog for why.

To get back pay on your current conditions you are going to have to challenge the denials.

Since we are now under the AMA process (no more legacy, no more RAMP) you will have to use the Supplemental Claim lane to introduce New and Relevant evidence that overturns the denials. New and Relevant replaces New and Material under the AMA process.

If you can prove a CUE, and I have no idea if you can, then that is your shortest path. Just remember that you can only CUE an issue once, so many people hold that as a hail mary pass. @Berta is the Queen of Cue around here and maybe she will chime in on this even though she is up to her eyeballs in alligators these days.

@broncovet is correct in his post. Those are the two criteria for SMC S.

To reach SMC (s) 38 USC 1114 controls the issue.

https://www.law.cornell.edu/uscode/text/38/1114#s

scroll down to:

(s)

If the veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of such veteran’s service-connected disability or disabilities, is permanently housebound, then the monthly compensation shall be $2,993. For the purpose of this subsection, the requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to such veteran’s house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran’s lifetime.

 

To apply the bolded criteria (1) above you would need to get your other ratings up to 60%. To get back pay you would have to get an EED on the increases. This will be very tough.

 

To get the second you will need the doctors to say you cannot leave the house.

if that is true as you are and as you were in 2015, and you can prove it, you will get back pay. If not you will only get paid from the date it is approved.

 

You don't say what your % for Depression is. Has treatment helped?

The 2015 date for depression indicates you might be near a review C&P. Depending on the results you might get a bump and even P&T considering the length of time.  If there is a path to 100% schedular versus TDIU, the VA will take that path. Don't be surprised if they send you for one.

Even a 100% P&T on Depression combined with your other current rates will not get you to SMC S based on the first criteria. You would need to bump the others to combine into a 60% rating or get rated for other stuff that combines to 60%

I am going to make a guess that retro for SMC (s) is not going to happen as you currently sit. 

Based solely on what you posted,

6 hours ago, Nvet said:

40% for my back, 30% Migraines, and 10% allergies

I would suggest your path to 60% runs through either seeking increases on the back and migraines. I would suggest looking for real and appropriate secondary conditions to each of them.

Secondaries all depend on the actual Diagnostic Code used for your particular condition along with documentation of the associated condition. So for example back problems are frequently related to ED and Urinary problems. If you have ED apply for SMC K, if you have ED you likely have one of the urinary problems, even more so if you are over 50.

Migraines often have optical secondaries and neurological issues. possibly problems with your sympathetic nervous system.

you don't say when you served but if you are Gulf War, OEF/OIF there are many presumptive conditions that may be related to your migraines.

Allergies are associated to the respiratory system and there may be secondaries there. you will have to look. Again the specific codes mean a lot in determining what secondaries may be available to you. 

Depression also has secondaries, but that path may have more dangers than your other conditions. You will have to research all the options, check them against your c-file, treatment records carefully and decide for yourself what risks may concern your case.

One example of a danger might be if your SC depression turns out to aggravate a NSC condition in your service record. That NSC can be rated as secondary and connected to service which would benefit you. However bringing that NSC to light might also cause the VA to reconsider the nexus of the SC Depression which might not turn out well for you. A situation that comes to mind might be a sexual assault that occurred before service, or the tragic death of someone in your life that sent you to counseling before service. Even child abuse or drug use before service might act against you.  A non-sympathetic C&P doctor might view any of those as the real nexus of your current depression.

My point is that there are many potential pitfalls in picking that scab of secondaries for mental health.
 

 

 

 

 

 

[Berta]

Nvet said:

"Hello,

I received a TDIU rating for Depression in 2015. In addition, I had 40% for my back, 30% Migraines, and 10% allergies. I was not considered for SMCs. Any advice on how to proceed to get SMCs and back pay? Thanks"

Based on what you posted so far I feel this is a prime facie CUE.

My SMC CUE is here:

https://community.hadit.com/topic/47459-how-my-cue-succeeded/

 

I understand your post as this:

You have a TDIU solely for SC depression.

You have additional disabilties that appear to combine to over 60%.

The VA committed CUE by not considering you for SMC...is that true- in other words they did not even mention SMC in the decision?

If so they have violated 38 CFR 4.6, and the Mandate of SMC in the link I gave you on how I won my SMC CUE.

Can you scan and attach the 2015 decision to include the Rating sheet?

Cover your C file # prior to scanning it.

Also they violated ,based on what you posted ,Bradley V. Peake:

If you clarify what you posted and can scan and attach the 2015 decision ,others can help- if I am not here later- this is an easy as pie CUE claim someone can write for you in this thread.

Bradley had not been determined when I filed my SMC CUE.Otherwise I would have got them on that.

Ironically the decision awarded both HB and SMC S (100% plus over 60%), but they only paid under one theory. I think-

I have asked for a complete award of that award because it involved a separate Nehmer award and the award letter said the audit was an "estimate".

In the past the VA made financial errors to the tune of 40 thousand on my issues.

Regional counsel cued them, but the amount was still wrong.I cued them again.

I got  all the cash but it is 'as likely as not 'they buggered the Nehmer audit, too.

Cover your C file # and your name, when you scan the decision.

 

 

 

 

Edited May 9, 2019 by Berta
added more

[Berta]

To add, CUE is NOT a one shot deal- if the BVA addresses it and denies and/or dismisses it without prejudice to refiling it, the claimant can then understand what errors they made -via the BVA decision, in the wording of the CUE and re submit it to their RO. 

I wanted to check that and found I had made the same point here multiple times-

Many of the CUES I have won were filed within the appeal period, not even needing an NOD.

Dont let anyone tell you a CUE within the appeal period at your RO, cannot by filed.

M21-1MR was changed because of suggestions I gave to former Sec Shulkin. That info is here as well under a search.

The VA ,because of one suggestion change, is supposed to review every decision for potential CUE, then correct what they find, before the final decision is made. It could be one reason why claims bounce back and forth at the ROs per ebenefits.

CUE is the very first thing I seek when I see posts like yours here.

 

 

 

[Berta]

You did get good suggestions here- from others....

Geekysquid said:

."@Berta is the Queen of Cue around here and maybe she will chime in on this even though she is up to her eyeballs in alligators these days."

Ha Ha, there are definitely alligators in the swamp of VA I am trying to help drain.

A veteran I mentioned here before-has a Bill in Congress that is similar to mine and suggested we both try to get on the hearing docket ,to testify in person.

My daughter , a veteran, would love it if I came to DC because she works in DOD NSA ,in DC and maybe I will take a long vacation there. Been there many times....I think every American with children should take them to DC.-the Smithsonian takes at least a week or ten days, and the Wall, and the Capital, WH, etc are all within walking distance if you like to walk- but the Mall shuttle bus is cheap.We were at the Wall there twice and at the moving Wall many times here in NY.

PS I got a very unusual letter from my RO director yesterday.

I actually got 3 , and one copy of  letter was supposed to go to someone else-who does not have a VA email.

I have to reply to them via snail mail-I responded to the Director in email-re: the letter and I  let her know I filed another White House complaint on the posthumous C & P exam results I received last week.

I emailed the VA "doctor" too.

I  intend  to bite those alligators in the butt. 

 

 

 

 

 

Edited May 9, 2019 by Berta

[broncovet]

Well, yes, Berta is the "queen of CUE".  

I have only filed one Cue, and it got quicky denied, and left a bad taste in my mouth.  

However, Berta's success with Cue is undeniable, in no small part to her thoroughness and attention to details that I have a tendency to disregard. (Bad idea on my part).  

She posted:

Quote

CUE is NOT a one shot deal- if the BVA addresses it and denies and/or dismisses it without prejudice to refiling it, the claimant can then understand what errors they made -via the BVA decision, in the wording of the CUE and re submit it to their RO. 

I wanted to check that and found I had made the same point here multiple times-

Many of the CUES I have won were filed within the appeal period, not even needing an NOD.

Dont let anyone tell you a CUE within the appeal period at your RO, cannot by filed.

I seem to recall reading that was not the case, probably from VA watchdogtoday.org

I think Jim Strickland advocated "you only had one chance at CUE".  And that stuck in my mind.  

I was not able to find anything in MY copy of the VBM regarding the "one shot cue" hypothesis.  That's probably because it does not exist.  

    Im rethinking my position of "never filing cue" except if there is no other way, mostly out of respect for Berta.  

    Im interested, especially, in Berta's opinion on filing Cue on violations of 38 cfr 4.6

in the event VA fails to adjuticate SMC S, when a single 100 percent disability is awarded.  (The M21 manual says that adjutication of SMC S is required whenever a single 100 percent disability is awarded, the problem is that BVA does not seem to follow M21.)

     However, BVA does have to follow the 38 CFR's to include 38 cfr 4.6 as Berta has so succintly pointed out.  

     How, then Berta, would a Veteran word a 4.6 CUE on VA's failure to adjuticate SMC S, when a 100 percent rating was awarded, as in the OP?