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SMC S and CCK law

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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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  • HadIt.com Elder

brocovet how does the VA define different bodily system?

 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).

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  • HadIt.com Elder

I am thinking  the meaning of a different bodily system  is  a veteran can have a S.C. disability usually his/her first claim   lets say hearing loss  is one bodily system and say PTSD is the other bodily system   then neither one affects the Arm.

So OSA (S.C. Sleep Apnea could be another bodily system secondary claimed as well  it don't affect the Arm

what your claiming should fly...you have two seperate 100% disabilities that don't affect the Arm  so they both could be claimed as within the bodily system  even if your secondary for Sleep Apnea .remember once a secondary claim is awarded it becomes part of the disability that it was related to or caused by.

your hearing loss and depression as one bodily system that don't affect the Arm  and  then of course your sleep apnea 50&/100%?...the only thing is  when it is secondary claim and becomes one of the conditions that caused it...you need to be careful with the way you word this  or a Dr words it   they could say your pyramiding  therefor your claim is denied. or some BS THEY CAN COME UP WITH FOR A DENIAL.

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Buck, my question is how does one get a non SC of 60%?

The VA just ups and tells you that your condition isn't SC, but still assigns you 60+%?

 

I'm missing something here.

 

Allan 2-2-0 HUAH!

 

 

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Allan....

    The way one gets a "non sc" rating often involves "pension".  "Pension" requires you to be disabled, but not SERVICE connected" disababled.  Pension also requires you meet other criteria such as low income, and service during wartime.  

    When I first applied, I was broke with no job.   My doctor advised me to apply for pension, because pension is usually a fast approval (if you are low income, and served in wartime).   

    So, I later applied for sleep apnea, and, of course, I have sleep apnea and use a cpap.  (That isnt in dispute).  But, my C and P doc (not competent in sleep medicine) opined that my sleep apnea was not related to service or any of my other sc disorders. This meant sleep apnea would be denied sc.  But, of course, I stall had sleep apnea.  So, they gave me a 50 percent NSC rating for sleep apnea.    My decision, in the first post, sort of explained that.  

    BUCK

     THIS is my explanation of why I dont think the "60 percent" in 100 plus 60 needs to be sc.  

     When a Veteran goes for a c and p exam, the doctor sometimes provides a nexus, that the condition is AT LEAST as likely (51 percent) as not due to sc conditions.   This suggests you are sc, but you are also nsc 49 percent for the condition.  But, VA gives you the benefit of the doubt so you ARE SC. 

Lets use this example:  (hypothetical Veteran)  

100 percent SC for PTSD

20 percent SC for hearing loss

30 percent sc for r knee

30 percent nsc for l knee.

    If you combined the percentages for those above PTSD you would have both SC and nsc conditions, but OVER HALF of those are SC.  Remember, you need only meet equiprose, the benefit of the doubt and "greater than 50 percent chance".     Since "over half" of your disabilites are SC you get the BOD for All of them.  So you meet the criteria, "just like" you meet the critieria if your doc says you got a 51 percent chance this is related to service.  

I suspect the same thing occurs here.  Its just a guess.  Im thinking this is the reason CCK law says the 60 percent need not be sc, but the VA is anal requiring a "single" 100 percent ...not a combined 100 percent...for smc s.  

Its pretty much a glitch in the law, and I think cck law found it!!

In other words the defination of "Service connected" means that you are at least as likely as not SC (51 percent chance).  It does not mean you proved you were SC, it means your doc said that there is a 51 percent chance, which is enough.  

It goes to the standard of review.  VA benefits are awarded under a liberal benefit of the doubt standard.  

When a man goes to prison they must prove "beyond a reasonable doubt" he is guilty.  This is a much stricter standard that we Vets dont have to meet for VA benefits.    If there is half the jurrors think the man is guilty and half think he is innocent, then he goes free.  

In a murder trial, the jury has to have a unanamous decision.  All 12 jurrors have to say "guilty".  If ONE says not guilty, then there is reasonable doubt and he must be set free.     With VA if we had 6 jurrors who thought we should get benefits and 6 said no, we would get our benefits because of the BOD (equipose), or 51 percent "standard of review" that Veterans get.  

In other words, I dont have to prove all my sc disabilities are SC, I only have to prove half of them are!!!

 

 

 

Edited by broncovet
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broncovet,

Not having a pension myself,  my Rated Disabilities include "Not Service Connected" X2(not related to hearing/ear problems).

 

Monday I got  two C&P exams, both related to SC hearing and ear diseases listed below.

I'm already SC bilateral otitis media and chronic right mastoiditis-10%  and hearing loss right ear-0%, post operative status, perforation of the right tympanic membrane-0%. ALL 3 conditions rated from 11/20/1990.

ALL 3 of the above are still present, and have been medically proven to have worsened.

 

I'm TDIU P&T, 90% Scheduler as of now.

 

Allan 2-2-0 HUAH!

 

 

 

 

 

 

 

 

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