Jump to content


  • veteranscrisisline-badge-chat-1.gif

  • Advertisemnt

  • Trouble Remembering? This helped me.

    I have memory problems and as some of you may know I highly recommend Evernote and have for years. Though I've found that writing helps me remember more. I ran across Tom's videos on youtube, I'm a bit geeky and I also use an IPad so if you take notes on your IPad or you are thinking of going paperless check it out. I'm really happy with it, I use it with a program called Noteshelf 2.

    Click here to purchase your digital journal. HadIt.com receives a commission on each purchase.

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • VA Watchdog

  • Advertisemnt

  • Ads

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

    employment 2.jpeg

    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

  • 0
Sign in to follow this  
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? 

 

Share this post


Link to post
Share on other sites

Recommended Posts

  • 0

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
  • Like 1

Share this post


Link to post
Share on other sites
  • 0

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

Share this post


Link to post
Share on other sites
  • 0

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

Share this post


Link to post
Share on other sites
  • 0

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/

Share this post


Link to post
Share on other sites
  • 0

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

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.
Note: Your post will require moderator approval before it will be visible.

Guest
Answer this question...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Sign in to follow this  

  • Ads

  • Our picks

    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
      • 7 replies
    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

       

      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.

       

      Does this help?
    • Thanks for that. So do you have a specific answer or experience with it bouncing between the two?
    • Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.

      The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.

      ...................Buck
        • Like
  • Ads

  • Popular Contributors

  • Ad

  • Latest News
×
×
  • Create New...

Important Information

{terms] and Guidelines