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SMC-S and IU CUE please!!

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Hello brother and sisters, I think I might a have a SMC-S CUE and hopefully someone can shed some light on it.

-USAF medically retied in 2013 %50 migraines from head injury

-Rated at %50 migraines and %30 anxiety/ depression from VA, %70 total upon discharge.

- I immediately applied for an increase and IU once out in the civilian world and was awarded IU and and an increase to %70 for anxiety/depression.

This is my issue, The VA lumped my migraines and depression together for IU. If I would have gotten extra scheduler IU for just the migraines, I would automatically be eligible for SMC-S. All the evidence in 2013 showed that my migraines alone could cause IU, doctors notes, discharge PEB letter, letter from va doctor, letter from a civilian employer from which I had to quit,  and even the C&P examiner, they all point specifically with the migraines causing IU. 

I am just unclear on the regulations for this. By looking at the IU extra scheduler requirements, I would have had to not qualify for scheduler IU when I applied to be inferred for extra, but I DID qualify with %50 migraines/%30 depression adding to %70. I still feel that the VA did not maximize my benefits by doing this, especially considering all the evidence that pointed to just the migraines causing IU. 

I sent all this info in along with all my evidence( that they all ready had) and got back a denial. "Second, even if reasonable doubt is resolved in your favor, and IU is based on a single disability of headaches, you still will not be entitled to smc-s per 38 c.f.r 4,16a because %50 is the maximum evaluation provided in the rating schedule." Im guessing I am not able to CUE the scheduler to an extra-scheduler decision here, and thats why I was denied. I might just apply for actual housebound in fact after this mess. 

Let me know what you guys think! 

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I dont suggest you file CUE at this point.   It seems like it would create an unnecessarily high hurdle for you to have to jump over, when that may well not be necessary.  You always have the option of filing CUE later, if it turns out to be in your best interest to do so.  

Instead, I suggest you simply file for SMC S, if you think you qualify and state your case.  If awarded, your effective date should be the date you met the criteria, not the date you applied, since SMC is inferred and "should" not require an application.  However, as you saw it often does. 

     If the VA awards SMC S, with a bad effective date, you can appeal the effective date while still collecting 100 percent plus smc s.  

Did a decision adjuticate the issue of SMC S?  If not, that could be an error.  M21 says that whenever a Veteran gets a single 100 percent they are supposed to adjuticate SMC S.  While failure to comply with M21 may be "error", you have to show its "outcome determinative error" to be CUE.  

     In other words, if you filed cue for failure to comply with M21 requiring adjutication of smc s whenever a 100 percent is awarded, the VA can say:

Quote

Ok,  You are right.  We forgot to adjuticate SMC S.   Now we will adjuticate it.  Its denied.  So The error was not outcome determintive, so it cant be cue.  (You cant file cue, for example, because the VA misspelled a word.  Its called "harmless error" and harmless error isnt cue, only outcome determinative error.  

My suggestion is you simply apply.  You can do that even if denied previously.  Remember there are 2 ways to get to smc s:  Statuatory (100 plus 60 seperate and distint) and housebound in fact.  You may have to have a c and p exam to show housebound in fact.  

 

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I have a feeling you are correct, I will probably just end up applying for it "in fact", as I do have plenty of evidence in that aspect a well, I was just trying to avoid a C&P.  My award letter for IU from 2013 had nothing in it about SMC-S in it either. I just kinda peeves me off that I just found out about this benefit and it almost seems as if they rated my disabilities to purposely skip the smc-s.....especially after I read this appeal, https://www.va.gov/vetapp16/files2/1612688.txt and this :

IV.ii.2.F.4.k. Determining Whether to Substitute a Single 100 Percent Schedular Evaluation for IU in Housebound Cases

 

VA is obligated to maximize the benefits awarded.  In determining whether to substitute a 100-percent schedular evaluation for IU, consider whether substitution would result in the Veteran no longer being entitled to SMC at the housebound rate.  VA decision makers are to assess whether the Veteran still meets the criteria for IU based on a single disability for the IU.
 
Further, VA is obligated to maximize a claimant’s benefits by assessing all of a Veteran’s SC disabilities to determine whether any combination of the disabilities establishes entitlement to SMC based on housebound status.  Even when IU has been previously established based on multiple disabilities or when a combined schedular 100-percent evaluation is established, decision makers must assess whether entitlement to IU based on a single disability is warranted such as to maximize benefits by allowing for a grant of entitlement to SMC based on housebound status.
 
 
 
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IV.ii.2.H.10.c.  Extraschedular Consideration in Housebound Claims Involving IU

 
 
 
 
 
When SMC at the statutory housebound rate is established based on a single condition that is totally disabling due to IU
  • the single disability must meet the schedular criteria for entitlement to IU defined in 38 CFR 4.16(a) without regard to the other SC disabilities, or
  • an extraschedular determination under 38 CFR 4.16(b) must be made with a finding that the single disability is so disabling as to result in IU.   
When the evidence of record establishes potential entitlement to SMC at the statutory housebound rate due to a single disability resulting in IU status but the disability does not, by itself, meet the schedular criteria to establish IU entitlement, forward the case to Compensation Service for an extraschedular IU determination as directed in 38 CFR 4.16(b) for the purpose of deciding entitlement to SMC at the statutory housebound rate. 
 
Example:  A Veteran is SC for migraine headaches evaluated as 50-percent disabling and for multiple orthopedic conditions that combine for an additional 60-percent evaluation.  The evidence shows that the migraine headaches prevent gainful employment.  Although the criteria to grant entitlement to IU have been met as there are multiple disabilities that combine to 70 percent with one that is at least 40-percent disabling, entitlement to SMC based on statutory housebound status requires an extraschedular determination since the headaches, by themselves, do not meet the schedular criteria for the grant of IU. 
 
References:  For more information on
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