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SMC-S For Surgery


deedub75
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Hello All!

I have been looking back though the history of my compensation claims because I and in the process of trying to get an earlier effective.  I had surgery on my service connected ankle on 12/5/14 and I applied for temporary 100%.  It was granted and I was paid at the 100% rate from 12/5/14 to 2/1/15.  I was also given SMC-S during that same time but I didn't know this until a couple of years laters when I was looking under the benefits section in eBenefits.  I am also service connected for bilateral pes planus with an effective date in October 2010.  On 9/16/15, I had major surgery to basically rebuild the arch in my left foot because it was so flat to the point where I developed tarsal tunnel which I have in both feet.  On 6/21/16, I had a plantar fascia release on the same left foot and my doctor also remove some screws from the previous surgery and did some other things because he couldn't figure out why I lost quite a bit of dorsiflexion and why my calf muscle atrophied so much.  On 2/12/20, I had a tarsal tunnel release on my right foot.  

I am 100% P&T with an effective date of 2/24/15 although it wasn't until 9/10/15 when I was notified of the 100% P&T rating.  I want to apply for SMC-S for the surgery I just had on 2/12/20.  I also would like to retroactively apply for SMC-S for the surgeries I had on 9/16/15 and 6/21/16.  

Is it possible to apply retroactively for SMC-S and if it is, is it even worth doing so?

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Yes, its possible and yours "may" well 

 be the first "test case".  Permanent SMC is inferred, which means you get it effective "the day you meet the criteria" independent of the date you applied.  

I really dont think "temporary" or "convalscent" SMC is any different.  I suggest you "go for it".  Currently, SMC S is 370 per month times 12 months is 4440 per year.  (It will actually be less because of Cola, and in 2015 it was slightly less.)  

To my knowledge (and I have been on hadit for well over a decade and have answered Thousands of questions in that time), it hasnt been done before, BUT, you can search yourself:

Pull up a CAVC/BVA search and type "SMC S retro convalscent" or similar and see what comes up.  Rather than having me do it for you, you need to learn to study case law anyway.  

Recently, (Feb. 2020) I won my SMC and EED for tdiu.  But mine was not convalscent SMC so I cant say for sure.  

"Going for it" may set a precedent for others to follow.  If you got it for all 3 years, that is about 12,000.  

Its my "opinion" you should apply and be ready to appeal if denied.  I would go directly to the BVA.  If denied at the BVA, you can appeal to the CAVC..with an attorney...at no cost because CAVC usually awards EAJA fees to the prevailing party, to include a remand.  

An alternative is to try to get something else SC so you can get smc s permanent.  Remeber, there are 2 roads to smc S.  

1.  The infamous "100 plus an additional 60 percent, seperate and distinct."  This requires a "single" 100 percent, which I presume you have.  

2.  Housebound "in fact" if you are "substantially confined" to your home and are unable to leave home "for work".  See Howell, here:  https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

      I actually had fully intended to "take VA to task" on Howell.  Its my opinion that VA doesnt do it right.  As you saw in the above link, "congress intended" for Veterans to get SMC S when they are unable to leave the home "for work" as opposed to unable to leave the home at all.  

      VA "grossly watered down Howell" and said instead that Veterans could leave the home for doc appointments and errands.  But that is not what congress intended.  The Supreme Court says when the intent of congress in known "that is the end of the matter".  In other words  courts must follow the law and that includes to follow congress intent of the law, provided that the intent of congess is known, when they drafted the law.  Howell makes crystal clear what the intent of congress is.  

 

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28 minutes ago, broncovet said:

Yes, its possible and yours "may" well 

 be the first "test case".  Permanent SMC is inferred, which means you get it effective "the day you meet the criteria" independent of the date you applied.  

I really dont think "temporary" or "convalscent" SMC is any different.  I suggest you "go for it".  Currently, SMC S is 370 per month times 12 months is 4440 per year.  (It will actually be less because of Cola, and in 2015 it was slightly less.)  

To my knowledge (and I have been on hadit for well over a decade and have answered Thousands of questions in that time), it hasnt been done before, BUT, you can search yourself:

Pull up a CAVC/BVA search and type "SMC S retro convalscent" or similar and see what comes up.  Rather than having me do it for you, you need to learn to study case law anyway.  

Recently, (Feb. 2020) I won my SMC and EED for tdiu.  But mine was not convalscent SMC so I cant say for sure.  

"Going for it" may set a precedent for others to follow.  If you got it for all 3 years, that is about 12,000.  

Its my "opinion" you should apply and be ready to appeal if denied.  I would go directly to the BVA.  If denied at the BVA, you can appeal to the CAVC..with an attorney...at no cost because CAVC usually awards EAJA fees to the prevailing party, to include a remand.  

An alternative is to try to get something else SC so you can get smc s permanent.  Remeber, there are 2 roads to smc S.  

1.  The infamous "100 plus an additional 60 percent, seperate and distinct."  This requires a "single" 100 percent, which I presume you have.  

2.  Housebound "in fact" if you are "substantially confined" to your home and are unable to leave home "for work".  See Howell, here:  https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

      I actually had fully intended to "take VA to task" on Howell.  Its my opinion that VA doesnt do it right.  As you saw in the above link, "congress intended" for Veterans to get SMC S when they are unable to leave the home "for work" as opposed to unable to leave the home at all.  

      VA "grossly watered down Howell" and said instead that Veterans could leave the home for doc appointments and errands.  But that is not what congress intended.  The Supreme Court says when the intent of congress in known "that is the end of the matter".  In other words  courts must follow the law and that includes to follow congress intent of the law, provided that the intent of congess is known, when they drafted the law.  Howell makes crystal clear what the intent of congress is.  

 

Thanks Broncovet!

From my understanding, it would only be temporary and not permanent.  When I got it last time for my right ankle surgery, they bumped me up from 10% to temporary 100% for 2 months and gave me SMC-S for 2 months.  Once they determined that I had recovered, they bumped me back down to 10% for my ankle.  

So I would have to get at least a 60% rating for one of these surgeries for the SMC-S to be permanent.  I currently don't have any one disability rate at 60% or mor.e.  I have a couple rated at 50% but nothing higher.  At least that's how I understand it.  

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When I hear, "I was told.......", I always cringe.  Told by who?  A VA employee?  A VSO?  Your third grade grandchild?   Did they read your records? 

You said "almost that"...you said, "Its my understanding"...you must have gotten your "understanding" from somewhere!  I would like to know if this is from a VA employee, a VSO, or someone else.  

I suggest people tatoo this on your arm to remember, in case you forget:

Quote

You can not always trust your vSO or a VA employee.  

There are 2 ways to get smc s.  I dont know which, if any, you qualify for.  

1.  100 percent (single 100 percent) plus an additional combined 60 percent seperate and distinct.  I dont know your medical records so I cant opine if you can reach that or not.  You seem rather doubtful.  

2.  Housebound in fact.  Are you working?  If not, then you are not leaving the home "for work".  

 

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Understand that the regulations for SMC simply states that you need to show you medically qualified for the specific rate (most frequently for SMC S) in order to get the entitlement- even if it's temporary. There is no time limit to claim it as it isn't a claim with claim rules. SMC, quite simply, is due and owing at such time as you qualify for it. Period. No one can question having a surgery that rendered you 100% temporary for X months/year. You have to file for it to get VA's attention but you do not have to file it on a specific form because, as I said, SMCs do not require a claim filing. See Bradley v. Peake and Buie v Shinseki for some real SMC gymnastics. 

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18 minutes ago, broncovet said:

When I hear, "I was told.......", I always cringe.  Told by who?  A VA employee?  A VSO?  Your third grade grandchild?   Did they read your records? 

You said "almost that"...you said, "Its my understanding"...you must have gotten your "understanding" from somewhere!  I would like to know if this is from a VA employee, a VSO, or someone else.  

I suggest people tatoo this on your arm to remember, in case you forget:

There are 2 ways to get smc s.  I dont know which, if any, you qualify for.  

1.  100 percent (single 100 percent) plus an additional combined 60 percent seperate and distinct.  I dont know your medical records so I cant opine if you can reach that or not.  You seem rather doubtful.  

2.  Housebound in fact.  Are you working?  If not, then you are not leaving the home "for work".  

 

I didn't say was told.  I read the regulations and from the way I understood it, I wouldn't qualify for permanent SMC-S. I am not working now but I am also not housebound.  I am 100% P&T but not to the point where I could get any of my doctors to fill out forms saying that I am.  

When I received temporary 100% for my ankle surgery, I did qualify for SMC-S because I had one condition rated at 100% and I had other conditions rated at 60% or more that were unrelated to the my ankle.  I had a C&P exam after the ankle surgery. I lost the temporary 100% and the rating for my ankle was knocked back down to 10%.  I then had no other single disability rated at 100% so I now longer qualified for SMC-S.  

My question to the group was to see if anyone had attempted to retroactively claim temporary 100% for past surgeries and if it was even worth it.  I would get maybe 4 to 5 months at the SMC-S level if my claims were approved because I was housebound due to those surgeries for about 4 to 5 months.  I would get maybe $1600+ in retro pay so I guess that would be worth it.  

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10 minutes ago, asknod said:

Understand that the regulations for SMC simply states that you need to show you medically qualified for the specific rate (most frequently for SMC S) in order to get the entitlement- even if it's temporary. There is no time limit to claim it as it isn't a claim with claim rules. SMC, quite simply, is due and owing at such time as you qualify for it. Period. No one can question having a surgery that rendered you 100% temporary for X months/year. You have to file for it to get VA's attention but you do not have to file it on a specific form because, as I said, SMCs do not require a claim filing. See Bradley v. Peake and Buie v Shinseki for some real SMC gymnastics. 

Thank you asknod!  I was reading some of your other posts in regards to SMC-S.  The only reason I didn't apply for temporary 100% when I had these surgeries is because I had been rated 100% P&T before the surgeries and I new nothing about the SMC-S at the time so I didn't think I'd benefit.  I didn't fully read the award letter for my temporary 100% because it was embedded with other claims that pushed me to 100% P&T.  I was so excited that I didn't really read all of the details.   

So it seems that I would just need to apply for temporary 100% for these surgeries as I did with my first surgery.  

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Correct. I would suggest a 526 form simply because it will capture all your metrics. However, because of the new AMA, the intake idiots (I call them the "booth bitch" regardless of gender) have begun a microscopic review of our c-flies to detect if you've ever filed for ____________ and been denied. If you have, well-hold the phone Ramone. We can't accept it on a 526. That's only for stuff you've never filed for before. What were you thinking? Send us the correct form and we'll upload it...soon. Maybe. But they never tell you which one is the "correct" form. That's legal advice and they are not permitted to dispense it.

Remember, you are not getting "housebound" pay per se. You are getting 100% +60% which is §3.350(i)(1). A Vet can also qualify by virtue of medical/physical disabilities which intrinsically keep you from being able to go out. Perhaps you have a long term  5-port PICC line with an 18" kicker hose and give yourself IVs for a six-month or more period. I did back in 2010 after I got out of the hospital. I had to go back for antibiotic IV blasts every week, too. You don't go out and walk the dog with a PICC line. You don't scoop the poop for fear of an infection and sepsis. That will definitely get you a 100% kicker temporarily. Go to the VAMC ROI and get the records or assemble them from you private provider and copy and submit with the form du jour. 

With the VA officially closing out DBQs completed by your own doctor(s) last week, that leaves the 21-2680. I've submitted hundreds for my Vets and the VA will still send you out for a c&p. Their "2680" is  about 8 pages compared to the VA form. 

I filed a CUE for a client down in San Juan, PR. It was a new CUE theory but I had filed a CUE back in 2016 trying to fix this. The BVA Judge (Matt Tenner) denied us. I then tore the c-file apart and found a VA form 3101 from the SJVAMC hospital to the SJ Regional Office asking them to begin "an original claim for hepatitis" . The date/time stamp said the VARO received it 12/28/1970. That's an informal claim under §3.155 back then. Better yet, he filed his official 526 less than a year later which preserved his "date of separation" effective date. The document was a one-pager- the very first in the VBMS queue because- duh- it was the oldest. In his paper c file, it's buried in the other 6900 documents somewhere. VA refused it because "it was on the wrong form. I sent in the 20-0995 to "fix" it and they denied with a one-pager four days later saying we hadn't submitted any new and relevant evidence. Denied. Next? "But, but, but gee, your honor. What about §3.304(d). I got it about 47 days after I separated from the Army. It takes Hepatitis about 40 to 100 days to show up after infection." Then they say well,then, thank you for your service, sir. Next?

I'd suggest filing it on a 8.5x11 standard form (white). Give them all your data-name, rank, serial # and DOB at the top to keep them on task.

And quiver in place safely, hear?

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