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SMC S and CCK law


broncovet

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CCK law has a post which states:

Special Monthly Compensation under Level S is given if...;.....

  • ......The veteran has at least one condition rated 100% AND another, unrelated condition rated at least 60%. The second (60%) disability does not have to be service connected. The second disability must be from a different bodily system (for example, both disabilities cannot affect the arm).
   end CCK blog quote.  
       This is in conflict with 38 CFR 3.350, which states, in relevant part:
...
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

Can anyone here explain this discrepency?  I have emailed Alex, so maybe he will respond.  

My VARO decision is more consistent with 3.350:

5. Entitlement to special monthly pension based on Housebound.

While not specifically claimed or appealed by the veteran, de novo review of the
evidence in connection with his Notice of Disagreement shows entitlement to special
monthly pension based on Housebound.
Entitlement to special monthly pension based on Housebound is granted where the
veteran has a single disability evaluated at 100 percent and has other disabilities that can
be independently evaluated at a separate 60 percent evaluation; or when the evidence
shows the veteran is Housebound "in-fact."
The veteran meets the criteria for special monthly pension based on Housebound as of
DD-mm-yy, the date his VA treatment reports show he began use of a CPAP
machine for treatment of his nonservice connected sleep apnea (warranting a 50 percent
evaluation for pension purposes) as the veteran has a single disability evaluated at 100
percent disabling as of his date (i.e., his service connected depression) and his other
service connected and nonservice connected disabilities (including his nonservice
connected sleep apnea) combine to an independent separate evaluation of 60 percent.
Therefore, entitlement to special monthly pension based on Housebound is granted,
effective September dd-mm-yy.    


Please Note: While service connected disabilities and nonservice connected disabilities
may be used in determining entitlement to special monthly pension, only service
connected disabilities may be uses in determining entitlement to special monthly
compensation.
End of 2009 decision quote. 
Some of you probably know that VA will pay you compensation OR pension, but not both.  This makes no sense, above, because why did they "award" SMP pension, if no benefits are REALLY awarded since 100 percent compensation is always higher than pension.  
Edited by broncovet
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Bronco,

One question I can't seem to get answered concerning your post is:

 

If a veteran with TDIU doesn't have ONE condition rated @100%,  eligible for ANY SMC's?

 

Example, my case: I'm TDIU, 90% scheduler, with my highest SINGLE disability rated at 40%.

 

Is the law plain and simple, no 100% SINGLE condition rating, without another NON-connected 60%(or more) rating=NO SMC?

 

Allan  2-2-0 HUAH!

 

 

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I am also TDIU P&T for over 20 years and it is my strong understanding that TDIU P&T vets are considered same as 100% P&T scheduler for the purpose of qualifying for SMC compensation including SMC-S if they/us receive an additional 60% rating or ratings that add up to 60%.  As with everything GD VA everything has to be so complicated to screw us vets unlike social security disability. 

I do remember from many years ago at least one federal court ruling from the CAVC or Federal Circuit ruling and clarifying just what I said and I have an appeal (increase in rating) that would give me additional 60% rating separate from my PTSD TDIU rating and thus qualify me for SMC-S.  The additional ratings must be separate from your disability rating that gave you the TDIU rating.  Clear as mud thanks to the ********VA.  This is not legal advice from me but only my own opinion and experience.

Edited by Dustoff 11
correction
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Bradley vs Peake, which is the case where the CAVC decided that "a single disability rated as total (100 percent)" does not preclude someone from getting SMC S if they are tdiu.  

There are "2" requirements for STATUATORY SMC S:

    1.  A single disability rated at 100 percent.  (TDIU can be substituted for a single 100 percent disability) and

     2.  An additional combined 60 percent seperate and distinct from each other.  

     Here is the problem with Bradley vs Peake:

    "What are your disabilitie(s) that rendered you unable to maintain SGE due to sc conditions?"  

     Vets often dont know, and VA isnt telling them.  

     Often, when awarding tdiu, the VA will say "all of your disabilities combine to render your unemployable".  This is pretty much a deal breaker for Bradley vs Peake SMC S.  

But, if your "40 percent" rendered you unemployable, then you should be eligible provided that your other disabilities were seperate and distinct.  

    If your tdiu is recent then the newer forms "ask" you which of your disabilities render you unemployable.  If you told them "all of them", then you may have cut your own throat for SMC S.  

    Its complicated, and, frankly I see that you have 2 choices:

1.  Do nothing.  

2.  Apply for SMC S, perhaps "along with" checking with a Veterans law firm to help guide you.  

     Number 2 seems to be the smart choice.  

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I agree with your choice of No.2.  Recently on another forum (VB*) that gives out bad misleading info sometimes I heard/read that in order to qualify for SMC-S your TDIU P&T rating must be based upon on a single disability such as in my case 70% for PTSD and not a combination of disabilities that add up to 60 or 80%, etc that gave you that TDIU rate.  I hope for sake of other vets that I am wrong on this or got bad info from other source which is of course common.  I am sure this is somewhere in the CFRs or USC that requires some digging.  Again only my own hearsay knowledge and not legal advice.

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@broncovet,

 

My award letter from 2016 is quite clear in respect to my TDIU P&T, it reads(paraphrasing) " Your combined SC rating renders you  TDIU P&T.., with no further examination appointments scheduled.., your combined Scheduler rating is 90%..."

 

Though it's a separate issue, I have 2 C&P exams scheduled for Monday to address my SC 0% for Post Operative Status, Perforation Of The Right Tympanic Membrane, which is still perforated as of today, and my SC 0% for hearing Loss Right Ear, which as of 11/11/2019, was diagnosed as "Moderate to sever hearing loss"

Both of the 0% listed above are from 11/20/1990 as listed on my Rated Disabilities.

 

Sorry if these are issues for another discussion, but I listed them to give a better understanding of my case as it applies to possible SMC's

 

Can I assume my two SC 0% disabilities listed above would not be considered "Separate" should SMCs come into play?

 

Interesting discussion!

 

Allan  2-2-0 HUAH!

 

 

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This quote is from a BVA decision No. 1643473 dated 11/15/2016

"Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute.  Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling.

In this case, the Board notes that as a result of this decision, a TDIU due to service-connected MDD has been granted. Thus, for SMC purposes, this disability satisfied the requirement of a "service-connected disability rated as total."  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008).  Because the Veteran has a single service-connected disability rated as total (i.e. her TDIU due solely to service-connected MDD), and has additional service-connected disabilities (i.e. complete hysterectomy with removal of both ovaries, sleep apnea, Type II diabetes mellitus, diabetic retinopathy with bilateral cataracts, abdominal scar, residuals left bunionectomy, residuals right bunionectomy, hypertension, irritable bowel syndrome, and pelvic adhesive disease ) that are independently rated at more than 60 percent combined, the criteria for SMC at the housebound rate have been met. 

Thus, in light of the Court's decisions in Bradley and in Buie, entitlement to SMC at the housebound rate under 38 U.S.C.A. § 1114 (s) is granted.
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