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Alchemist

How to File SMC (S)

Question

Tidings to all, I have been a background lurker for years and have used much of the information found on hadit to assist me.

Labeled:

Major Depressive 70% but receive TDIU 100% Permanent and Total

Stress Incontinence 40%

Migraines 30%

Scars 10%

Lumbar 10%

Tinnitus 10%

Breast 0%

 

I filed for TDIU for Major Depressive back in October 2015. I Did Receive TDIU with P&T and backpay. However, By my estimation I should have been auto "entitled" to SMC (S) according to my innerstanding based on 100% and 60%. I Filed through ebenefits asking for special monthly compensation and they sent me a VA FORM 21-2680...now according to this document it doesn't list the Special Monthly Compensation "statutory" that I believe I am entitled to. Does anyone know how I can submit this? I looked up the current (sep 2019) 526 EZ and it really doesn't look easy or allow for me to write the reg in any place...unless im overlooking it...does anyone know which form I should submit and cite the proper regulation ?...I think its 38. U.S.C 1114(S) (38 CFR 3.350 (I)) to a veteran who has a single disability rated at 100, and has an additional or additional rated at 60.

 

Thankyou to all who have served. May you get yours.

ThankYOU

 

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2 hours ago, Alchemist said:

Tidings to all, I have been a background lurker for years and have used much of the information found on hadit to assist me.

Labeled:

Major Depressive 70% but receive TDIU 100% Permanent and Total

Stress Incontinence 40%

Migraines 30%

Scars 10%

Lumbar 10%

Tinnitus 10%

Breast 0%

 

I filed for TDIU for Major Depressive back in October 2015. I Did Receive TDIU with P&T and backpay. However, By my estimation I should have been auto "entitled" to SMC (S) according to my innerstanding based on 100% and 60%. I Filed through ebenefits asking for special monthly compensation and they sent me a VA FORM 21-2680...now according to this document it doesn't list the Special Monthly Compensation "statutory" that I believe I am entitled to. Does anyone know how I can submit this? I looked up the current (sep 2019) 526 EZ and it really doesn't look easy or allow for me to write the reg in any place...unless im overlooking it...does anyone know which form I should submit and cite the proper regulation ?...I think its 38. U.S.C 1114(S) (38 CFR 3.350 (I)) to a veteran who has a single disability rated at 100, and has an additional or additional rated at 60.

 

Thankyou to all who have served. May you get yours.

ThankYOU

 

 

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Alchemist  what you are looking for is equal to housebound complete the form and explain your TDIU and 70% for major depressive i think it should work properly since you are asking for the Housebound rate..........                                                                                

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Thanks Mr. Pain. So im going to submit the 526 add Housebound and see what happens. When I find out something ill update. 🙏

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Im glad you applied, and (I hope) you get it without delay.  Others have not been so lucky and most have to fight VA for it.  

Bradley vs Peake (which allows TDIU to substitute for a single 100 percent disability for statuatory SMC S) is a bit complex, but it does turn on whether or not your TDIU was based on a single disability (causing tdiu) or on multiple disabilities that combine to be tdiu.  

Does your decision give the reasons for your award of tdiu?  That is, was it based on a single 100 disabiiity?

Most importanly, read this:

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

   This should help keep it in perspective.  In relevant part:

Quote

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.

But, VA has "watered down" this statement, and watered it down a lot.  Their M21 says you can leave the home for doc appointments, and maybe to run errands, but that is it. 

Now, does that sound like Congress intent, up in red, above?  Not to me.  

Im currently in appeals at the BVA over SMC S.  I argued because, the VA has determined me to be "unemployable", then I can't leave the house "to earn an income" because, I cant earn an income.  

Im ready to take this to the CAVC, if denied, provided that I can find an attorney to represent me.  

Chevron deference means that VA gets to interpret its rules as they see fit.  But, the VA's interpretation is totally inconsistent with congress intent, and I allege the VA's interpretation is "arbritrary and capricious".  Grab your popcorn and we will see how this turns out.  

 

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