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

[allansc2005]

Buck, I just filed for the increase like 3 weeks ago.

Again, you are spot on, attorney thinks retro will be somewhere around 200K, but time will tell.

 

I do want that 100% Scheduler more than anything.

Allan 2-2-0 HUAH!

[paulstrgn]

I hope you also get a big retro check Allen...but I guess the question would be to you have evidence back to 1990 showing you should have been 50% rated for hearing loss? I would think you will need some very strong evidence to establish this fact with the VA, if not an appeal to the BVA itself.

Good luck!

[broncovet]

I have been asked about the effective date(s) for Allen's (possible) increase.  

Effective date law is complex, and not all attorney's even take it on.  

Your effective date is the later of the "date of claim" or "facts found".  

(With many exceptions, see the regulation, below) .  

However, with SMC, its different.  Your effective date for SMC is always the facts found because you dont have to apply for SMC its always inferred.  So, even if I apply for SMC S in 2019, I will get it back dated to the facts found, that is, the date I first met the criteria for SMC.  

The regulations on effective dates are here: https://www.law.cornell.edu/uscode/text/38/5110

One in particular (that the VA usually gets wrong, and they did so with me) is the one for an increase: (from the link, above)

Quote

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

Allen..a review of your file "may" show that you were entilted to up to a year's more retro, because VA missed this, because of this rule I posted above.  It actually happened to me.  I appealed the effective date to the BVA.  While I did not get the effective date I had hoped for, the Board noted the above regulation and gave me another year's retro, based on this regulation.  (A year of 100 percent was a little over 30,000 dollars..not too bad!!)  

There may be other exceptions that could apply to you, and mean you get an eed.  Another that happens quite frequently is when you apply with a year of your discharge.  You can read about that one yourself if you applied within a year of your discharge.  

[allansc2005]

bronco, given what you just posted, and the applicable laws you made a link to, my effective date of awards for the SC disabilities I listed in these previous posts, will be 11/20/1990.

 

Allan 2-2-0 HUAH!

 

 

[GBArmy]

Buck  I too just saw your comment regarding 3 0% ratings can get you an ADDITIONAL 10% rating. I knew about 2 0% getting a 10% if it effects employability, but 3! That is pretty significant. Do you remember where that is specified? That could come in handy for some veterans.

Edited December 1, 2019 by GBArmy
incorrect name

[broncovet]

Allensc

    Great, on the 1990.  Assuming this is correct (and I have not read your file, and you have, so I will go with it), trust me, VA will fight you on this.  That is 29 years of Retro if/when you win it.  Something around 100k retro.  You may need an attorney to get it.  Here is why:

    GS9 (or even GS11) rating specialists are probably not authorized to sign documents that net you 100 grand in retro.  So, almost always, they deny and you have to get it awarded by a judge (BVA or CAVC).  

    My advice here would be:  

1.  Go ahead and apply for Smc.  (but be ready for a fight if/when its denied).  

2.  If denied (likely), then take your file to a Vets law firm familiar with SMC.  (CCK law is one).  Ask them what they think (that is, if you should get retro back to 1990).  You can explain to them why you think so.   If they agree to take your case, its likely very very good.  

     Then you can decide whether or not to hire them at the BVA.  Or, wait for the BVA, representing yourself (with advice from hadit), and see if you win it there.  If you lose at the BVA, definately hire a law firm to represent you at cavc.  

      SMC is kind of a special circumstance with effective dates.  Again, you get SMC on the facts found, not on the date you apply because smc is always inferred.  (VA is supposed to figure out if/when you deserve SMC without you applying.  Half the time they dont do that, however, so you fight them.  But, when you win, there is no "claim date" with SMC your effective date will be when you first met the criteria.  (Again, I have not viewed your file so I dont know if and when you qualify for smc.  

However, read this:

     https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

      I suggest you read it carefully.  I must have read it a dozen times, and get more each time I read it.  

In Howell, the VA denied the Vet SMC because he left the home to go to his c and p appointment for housebound, so he couldnt be housebound if he left the home right?  Wrong.  Read this:

The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all.

Edited December 1, 2019 by broncovet