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How to File SMC (S)

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Alchemist

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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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Using the first post for information, and the listed disabilities as the predicate(s) for potential SMC S, this has a simple explanation. VA likes to take certain groups of ratings "combined" that lead to TDIU. In truth, they are required to presume the Rice v. Shinseki  law that once you qualify for TDIU {at 60% (or 70% here or 40% + others that combine to reach 70%)} they have to consider TDIU automatically. Buie v Shinseki then states they have  to combine them in the highest manner possible to attain maximum SMC.

Here are your listed ratings  

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

Stress Incontinence 40%

Migraines 30%

Scars 10%

Lumbar 10%

Tinnitus 10%

Breast 0%

Knowing VA's propensity to lowball or screw you, it's apparent they have combined the 40% for stress incontinence with the Major Depressive Disorder (MDD)(70%) and call the combination of those two disabilities the reason to grant your TDIU. Obviously the two are inextricably intertwined because the incontinence is caused by stress which is is provoked by the Primary diagnosis of MDD. Ergo 70% + 40% in VAland equals 80%. Or TDIU at the 100% rate. P&T is granted because you probably are not going to get better.  

For the SMC calculation, the combo of the rest of your disabilities is 30%+ 10%+10%+ 10%= 50%. You need an additional independent 60% to qualify and you only have 50%. This is why you will not qualify for SMC S unless, or until,  you can obtain an increase on the migraines, painful scar  or lumbar disorder. Your scars are static and can't be increased unless you want to complain of pain. It is now a separate rating (usually at 10%) for VA standards and stands alone. An increase of 10% would get you to 60%. Your 10% for tinnitus is already at max so that is not available. I've never argued an extraschedular for tinnitus but I suppose I could win one with a good, $2 K IMO.  An increase for migraines from 30% to 50% would get you to SMC S assumming arguendo you qualify for the symptoms.

Or... keep headaches at 30% and file for increase in lumbar from 10% to 20% - again-presuming you qualify. An increase of 10% to 20% would then combine to 30% +20% + 10% + 10% = 60%. 

I could add more % choices but not here based on the privacy concerns of the member's medical nature.

 

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Edited by asknod
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