SMC S and CCK law

[broncovet]

CCK law has a post which states:

 https://cck-law.com/blog/special-monthly-compensation-explained/ .   In relevant part:

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 November 27, 2019 by broncovet

[Buck52]

Now be careful because of the way VA Rates us using their math

 for example 

10% 30% 50&  does not equal a 90% rating   that would be a 70% rating  they use a special rating table to get the Veteran up to the 90% rating and infer the IU  SO YOU MAY NOT BE AT 90% LIKE YOU THINK.....> YOU MAYBE AT 70% OR 60% AND STILL HAVE THE IU.

IT SHOULD TELL YOU ABOUT HOW THEY RATE COMBINED RATING IN YOUR AWARD LETTER.

Although you are IU  you are rated 70% but being paid at the 100% rate

IT IS NOT YOUR MOTHERS MATH THEY USE.

When I was on IU I WAS CONSIDERED AT 90%AND WAS INFERRED THE IU BUT MY ACTUAL RATING WAS 60%  HERE WAS MY ACTUAL RATINGS   50% 30%10%   WHICH IS NOT 90% ACCORDING TO VA MATH  ITS 60% ACCORDING TO THE VA  BUT ON E BENEFITS IT SAYS 90%IU

.NOW HOW THEY DO IT THIS WAY I DON'T KNOW? BUT SINCE THEN I HAVE HAD MORE S.C. CONDITIONS THAT ARE SEPARATE & DISTINK  AND SMC S & K GIVEN TO ME.

ON EBENEFITS IT SHOWS I AM RATED AT A 100% FINAL DEGREE RATING...BUT I AM STILL CONSIDERED TO BE TDIU P&T because of my original rating..I still send in the 21 4140 every year  the employment questionnaire. (just to be on the safe side)  I need 2 more years for the 20 year protection rule...you should have your in by now. 

THEY DO NOT GIVE A PERCENTAGE WITH THE SMC AWARDS.  EACH SMC PAYS A DIFFERENT PAYMENT. DEPENDS ON WHAT SMC YOU GET. AND IS PAID IN ADDITION TO WHAT YOU ALREADY BEEN GETTING.

[allansc2005]

Buck, I only just got my TDIU in 2016.

I'm claiming an increase for the ear problems back to 1990.

 

Ascetically, TDIU(in my case) is 100% + 90% Scheduler= 190% in a layman's terms.

Of course as we all know, the VA doesn't do math like we do, so I posted my own math.

Make sense?

The C&P exam for tomorrow, which covers ALL these hearing and ear issues back to 1990, are what's on the table here.

 

The best estimation a lawyer gave me, after looking over my medical records, was: 50% for loss of hearing, 20% for perforated tympanic nerve, 10% for tinnitus.

 

No SMC's, and some sort of back pay from 1990, round out the lawyer's best guess.

What's your take?

Others feel free to jump in.

Allan 2-2-0 HUAH!

 

 

 

 

[Buck52]

Allan the only thing would be if you do get these increases is they will need to make adjustments in your pay  and depends if they go by the date you first filed for the increase I doubt they will go back to 1990  but its a possibility if you have a good attorney.

going for a 90% iu the increase would need to be at least 50% or more to reach the 100% scheduler  now if they back pay you for these increase  and you been getting the iu payout at 100%  I am not sure how they would calculate this other than just the standard pay difference in what you were getting and what the difference is in the increase? 

 they will figure all that out but a lot of it depends in they go by the date you first filed?  back to 1990 I doubt they will go back that far but again its a possibility they can or will they?

 

One more thing Allan

if you been 190% since 1990 and all you been getting was the IU ?  you may have a big fat CUE you can file .

but I am not 100% sure  broncovet may know?

Edited December 1, 2019 by Buck52

[allansc2005]

Buck, I'm 90% Scheduler, as in writing from the VA.

I also got a letter from the VA telling me NOT to send in anymore 21-4140s due to my TDIU P&T, as well as my age.

P&T means just that, and the VA has done away with my "Protection Rule" as hey stated in the letter, telling me it's no longer needed.

Allan 2-2-0 HUAH!

 

 

[Dustoff1970]

I finally learned about VA math from others after a long time of confusion so here goes.

1.  Let say you have only one rating at 70% for PTSD (example) then

2. This means that you have according to VA knuckle heads 30% remaining of healthy body

3. You receive another SC rating for 50% for another body part condition then

4. VA will multiple that 50% times your remaining 30% and this give you a number of 15 that VA will then

5. Add this number 15 to your original first 70& rating thus giving you a new 85% percent rating that they may round up to 90& for your new total disability rating.

6.  Then if you receive an additional 30% rating for another disability then they will multiple this 30% times remaining 10% of healthy body to arrive at a new number of 3 that they then add to your 90% for a 93% disability rating that they round down to 90% for new total disability rating and you are still stuck at 90%.

Only the GD screw ball government would come up with this contorted rating system to use only on veterans and no one else.  This is not legal advice but only my own personal opinion and experiences.

[allansc2005]

@Buck, my ratings: 40%, 20%, 10%,10%, 10% 10%,0%,  0%, 30%, 20%,20%, 20%

 

I count 90% total in VA math. How about you?