Do I qualify for SMC’s ??

[Ray AO]

I’m going directly to the point after this. 

Do I actually qualify for SMC’s1??

I have 

100% PTSD P&T 

50% Sleep Apnea 

20%TMJ

20%Right Knee 

10%Left Knee 

I know I’ve a 70% combined rating and 100% for single disability.

The requirements for Statutory SMC is to be 100% for one single disability and another 60% for a disability or combination of disabilities independently evaluated at 60 or more. 

The issue here is if the 50% for sleep apnea  secondary to my ptsd condition can qualify  for that combination of ratings? Or not? 

 

[FormerMember]

The answer is no. Your SA is secondary to your PTSD so VA will not count it as separate and distinct. 20+20+10= 42% which rounds down to 40%. Which is not to say they won't make an error and give you SMC s. It will create an overpayment and VA can recoup it at any time.

P.S. As others have commented about the possibility of a grant of  SMC at the (s) rate predicated on  §3.350(i)(2), I  will address it now as well. I presumed Ray AO would have discussed he had agoraphobia of other psychiatric disabilities (or potential risk of harm to himself or others due to insomnia or hypersomnia) had he wanted information on that potential entitlement facet (substantially housebound). 

As he specifically asked if he was entitled under §3.350(i)(1), I addressed that question as to whether the sleep apnea would qualify, not if he was substantially housebound. It would appear very clear that Ray AO is more than acquainted with 38 CFR than others give him credit for. He  knows the potential disqualification of secondary conditions such as sleep apnea if they are not separate and independent. Ray AO would need to submit a VAF 21-2680 Housebound form signed by a doctor stating he is substantially housebound in order to be granted entitlement to SMC (s). 

I chose to read the complete post from start to finish. Ray AO clearly and unmistakably cited to that which he was inquiring about - entitlement to §3.350(i)(1). Nowhere in the four corners of his post could I ascertain anything else. 

"I’m going directly to the point after this. 

Do I actually qualify for SMC’s1??"

  

Edited September 15, 2019 by asknod
clarification of post

[Berta]

Can you scan and attach here the decision that reveals those ratings, and the rationale VA used if they denied you SMC?

Or did they fail to even consider you for SMC in the decision?

Please cover your C file #, name, prior to scanning it.

These are the SMC S regulations:

"Under 38 U.S.C. § 1114 (s), SMC is payable at the housebound rate if a veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) she is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. 1114 (s)."

https://www.va.gov/vetapp19/files5/19133580.txt

You might be eligible under the (2) or part of the regulation.

The "or" needs medical evidence that your SCs make you Housebound.

With 100% PTSD and also the sleep apnea, rated at 50% by VA ,regardless if it is a secondary to the SC PTSD, would make almost any veteran Housebound in my opinion.

But that would be a medical determination needed from a doctor.

The VA might be right------

Then again I would like to see their decision.

I won a CUE on SMC under violations of two aspects of VA case law.

The VA granted the CUE on both theories of SMC S above but awarded one comp amount.

 

 

Edited September 14, 2019 by Berta

[Berta]

To add- this veterans was granted SMC Housebound when he was granted 100% P & T for PTSD.

The decision mentions no other SC disabilities that would have put him into the 100% plus 60 criteria.

https://www.va.gov/vetapp18/files10/18140332.txt

In this case the veterans was 100% P & T for his PTSD.

His only other disability was a NSC one.

The BVA remanded the claim to see if the veteran was Housebound under the SMC (2) housebound criteria.

https://www.va.gov/vetapp17/files1/1703690.txt

VA OIG has found many errors raters have made in SMC issues.

The VARO made a big SMC error in  a posthumous award to my husband.It was a prime facie CUE and my so -called vet rep didn't think I should appeal.( because it was a 1151 award letter)

A few years later it still bothered me and I filed an SMC CUE- on the decision and I won.

We have Many here who understand CUE and have won CUE claims.

As this law firm defines housebound, they make the point that it can be  a result of one SC disability or more than one, if your SC or Scs confine you to your immediately premises.

"For housebound benefits, the VA considers you “substantially confined” as a result of your disability or disabilities.  Typically, the VA will want documentation that you will be housebound on a permanent basis as a result of your disability or disabilities.  If you are housebound due to a surgery for one of your service-connected conditions, you can file for temporary 100% which is discussed in detail in a previous blog."

https://www.hillandponton.com/aid-attendance-special-monthly-compensation-benefits-beyond-100/

 

 

 

 

 

 

Edited September 14, 2019 by Berta

[broncovet]

We dont know if you qualify for SMC, but, I agree with Alex that it would appear you dont qualify for STATUATORY SMC S, because a secondary isnt "seperate and distinct" as in the regulation:  

Quote

(i)Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and,

(1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or

(2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.

See number (2) above, tho.  As Alex pointed out, the VA loves to deny Vets who "show up" for housebound c and p exams.  However, this is a miscarriage of justice.  https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

[Dustoff1970]

CONFUSION!!!!!!!!!.  For what it is worth here is a September post from a veterans wife

 

  "Hello everyone. My husband was just awarded sc for sleep apnea by the BVA. They sent it back to the RO to be awarded. This will now give him SMC-s since he is 100% for PTSD alone and the sleep apnea award will put his other combined totals above 60%. The va.gov website says he should see a change in pay in 1-2 months. Anyone with experience with this and how long did it take for your award to show up after BVA granted appeal? And do they give retro for SMC-s?"
 

There seems to be confusion among knowledgeable veterans, advisers on different veterans forums as to whether or not OSA Sleep Apnea at 50% rating level secondary to PTSD can be used as part of 60& requirement for qualifying for an SMC-S award assuming that the vet is 100% for PTSD  or TDIU due to PTSD only.  Some pros say yes and others say no. There are many confused vets including me with claims and appeals on this issue in the works.

I would also like to hear from any vet who has received SMC-S  due to secondary SC of Sleep Apnea due to a 100% PTSD only rating.  Thanks Everyone

[broncovet]

I read this all again.  It boils down to:

"How does the VA rater "interpret" the regulation?  

There are obviously 2 choices:

1.  The VA can interpret it in a Veteran friendly, benefit of the doubt way.  This means you have "100 plus 60" and this interpretation means that "PTSD is seperate and distinct" from OSA, even if they are secondary, because they involve different body systems.  Your breathing at night (respirations) are different than if you have PTSD nightmares, even tho both occur "at night".  

2.  The VA can also interpret this in a non Veteran friendly, non BOD way.  That is, if OSA is secondary to PTSD, then they cant be seperate systems.  

     Its been my experience that VA will sometimes be Veteran friendly but other times, they go way the other way.  Mostly, tho, the VA is not Veteran friendly and they only do BOD when they have to.  

     There isnt a "meter" where you go into a doctors office and he reads it off..."Yes, your OSA is only 49.2  percent secondary to PTSD", so this means they are seperate and distinct.  

     In a discussion with at least one lawyer, the outcome often involves "which" CAVC judge you get.  Ditto for BVA judges.  We all have a little bias, and it cant help but manifest itself in our thinking as well as BVA/CAVC/Varo decisions.  

    

Edited December 5, 2019 by broncovet