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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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Ray AO

Do I qualify for SMC’s ??

Question

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? 

 

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4 answers to this question

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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 by asknod
clarification of post
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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 by Berta

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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 by Berta

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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/

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