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? 

 

[Dustoff1970]

Thanks for your answer Broncovet that makes very good sense.  This is one way the VA plays favorites among us vets such as who represents us and/or our military background IMHO.  I have never been a teachers pet and have had to appeal most of my claims myself including all the way up to the U.S. CAVC court in 2005. 

I have always had to depend on my VA medical treatment records, arguments, lay statements and army service records with little or no help from VA C&P examiners.  With one exception in 1998 the examiners were IMHO sorry excuses for doctors, PAs or anything else for that matter. A few of the shrink examiners were washed up alcoholic scum calling themselves doctors (1985 to 1991).

.As for last 35 years I will continue to soldier own as nothing has changed for the better for me.  Believe me folks the VA does not make honest mistakes. Cheers everyone

Edited December 5, 2019 by Dustoff 11
addition

[FormerMember]

The true crux of this discussion is still unknown. Ray AO has failed to answer and illuminate us as to whether the SA is secondary to the PTSD. The Diagnostic Code (DC) for SA is 6847. As BroncoVet points out, the rater can go either way on one of these. SA  is a totally different Diagnostic Code from DC 9411 (PTSD). As such, it can be rated either separately as a stand alone rating or it may be secondary to the PTSD in the instant case. It all depends on how it was filed and claimed. A Confirmed Rating Decision (CRD) ,which VA doesn't send you with your decision, explains each diagnosed illness and the Diagnostic Code.

If you SA is secondary to the PTSD, the DC would be a compound DC under §4.27. In this case, if it was secondary, the DC, it would be 9411-6847 and the the CRD would list it as a secondary. If so, it would be a crap shoot as to what the rater would do. Most will deny the SMC because they use what's called a SMC calculator which is shorthand for "deny". The SMC calculator is pathetic and always ends up in VA's favor against you. As for being substantially housebound under §3.350(i)(2), VA will use anything and everything they can summons to deny on that sub-section. God forbid you went to the VAMC every month for medical treatment. That would be proof you are NOT housebound in their minds.

I have a rating for Hep C at 100%. I have a lot of secondaries relating to it which add up to 60% or more and VA won't give it to me based on them. However, I have a separate 100% for Porphyria Cutanea Tarda (from AO) rated as dialysis due to the need for frequent phlebotomies so I obtained my SMC S from that.  

The general rule is what the CRD states. I attach one here below for members to review. I see a lot of BVA decisions cited on these HADIT pages. Please remember that unless the facts of the case  mirror your case in every respect, they are useless to cite to- i.e. they are useless for precedence. However, they do give you an idea how the BVA will rule because their Purple Book demands stare decisis.

In my Vet's case below, the VA threw everything but  the kitchen sink into the SMC S rating (which is illegal) but it's immaterial as I got this Vet SMC L for loss of use of his lower extremities. As I say, each case is unique and each rater is an unknown quantity. That's why we often have to appeal to get it corrected. This was the first time I ever won a Loss of Use  at the RO (WACO) without a fight up to the BVA.

 

Johnny Vet CRD redacted.pdf

[Dustoff1970]

Thanks Asknod for that insightful detailed answer about how VA raters use hidden methods to grant or deny a claim as in hidden from the average vet like me. 

I have seen statements from present and former VA raters to include former DRO officers that SMC-HB (Housebound) and SMC-AA (Aid and Attendance) is totally different from SMC-S due solely to additional 60% rating on top of a 100% PTSD rating and that in this instance a vet does not have to be housebound at all for this latter SMC-S. More confusion and complication by good old VA??????

This info I just posted was from another veterans benefits forum I use to visit before Hadit.

[Buck52]

Alex Great job   getting this Veterans WIN looks like a Jackpot Win .

Please  

                                        '' CALL ATTENDANT''.....

[Buck52]

Will be Interesting if they give the SMC-S due to secondary S.A. to PTSD??

If they don't ?

I don't see a separate rating of 60% to gain the SMC -S H.B.

[FormerMember]

There seems to be some continuing confusion here at Hadit on SMC requirements for Aid and Attendance. SMC L covers A&A. Look at §3.350(b) and you see:

(b) Ratings under 38 U.S.C. 1114(l). The special monthly compensation provided by 38 U.S.C. 1114(l) is payable for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less or being permanently bedridden or so helpless as to be in need of regular aid and attendance.

The only other rating for aid and attendance is R2 which is "a higher level" of A&A. It is covered in §3.352(b):

 

(b) Basic criteria for the higher level aid and attendance allowance.

(1) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met:

(i) The veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 U.S.C. 1114(p).

(ii) The veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section.

(iii) The veteran needs a “higher level of care” (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care.

(2) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(j) in lieu of the regular aid and attendance allowance when all of the following conditions are met:

(i) As a result of service-connected residuals of traumatic brain injury, the veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section.

(ii) As a result of service-connected residuals of traumatic brain injury, the veteran needs a “higher level of care” (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care.

I think the problem arises with the VA Form 21-2680 which is a form used by a  VA examiner to investigate qualifying for SMC S  as being substantially housebound or the need for A&A. Note my use of the word "or". SMC S is essentially a two-part test for a) 100% + an additional 60% separate and distinct from the 100% or b) being substantially housebound in fact. There is no mention of a&a in SMC S under §3.350(i) nor would there be as it is rated as SMC L.

As I like to point out, SMC is very complicated. Just when you think you have it figured out, you discover you don't. Imagine VA examiners. They need a M 21 calculator to figure it out and then cannot even accomplish that. I've had to fight for every SMC O leading to R1 or R2 except for one (R2) in Manila. It took a long fight at the local VARO level because they kept trying to use a PN DBQ to deny LOU of the lower extremities. Their view was if you could get out of bed, pivot and fall back into  a wheelchair, you did not suffer LOU of the lower extremities. Jensen v. Shulkin (§3.809) put paid to that insanity.