SMC Questions

[scottinmt 4]

Hello All,

It's been a few years since I last signed on and it seems most of my data has been purged from my profile.  I received my 100% P&T rating in the spring of 2016 backdated to the summer of 2015.  My conditions have seemed to worsen over time and I am now considering applying for SMC for being both housebound and relying on my wife to care for me due to mental and physical issues.  I do not have a service connected mental health diagnosis but have seen VA Psychiatrists since 2011.  It appears that being housebound is a SMC S rating but I am unsure of where what I'm calling "aid and attendance" falls.  Any help would be appreciated.  Thank you!

[broncovet 4,251]

There are 2 separate criteria for housebound (SMC S).  I shall paraphrase the regulations:

1.  A "single" 100 percent plus a combined 60 percent seperate and distinct.  (Statuatory housebound)

2.  A single 100 percent and your doc saying you are "substantially confined to the home".  (Housebound in fact).  

      Bradley vs Peake shows us that TDIU can be used for a single 100 percent for the above.  (It is a little more complicated than that, tho, if you are tdiu, let me know). 

     The VA loves to deny housebound by requiring an exam, then, if you show for a housebound exam, they deny because you left the home for the exam, right?

     The VA can not do that any more.  SMC S, is not for Vets who cant leave the home "at all" but rather, who can not leave the home "for work".  See Howell vs Nicholson, which explains congress intended the above sentence.  

  The criteria for a and a is as follows:

       Your doc says you need the assistance of others for things like (and they give a bunch of examples).  eating, bathing, getting dressed etc...the daily life activities.  OR

       You be bed bound (confined to your bed).  '

       YES, the regulations permit you to get A and A, even if a family member provides care for you.  Its not required you hire "outside" help.  

https://www.law.cornell.edu/cfr/text/38/3.350.  Scroll down for housebound, and a and a.  

[scottinmt 4]

Hi Broncovet, LTNS.

I thought the requirements for receiving SMC S were either:

1. 100% on one specific medical condition/issue and an additional or total of all other medical issues being 60% rated.  or...

2. The actual merits of your condition that support you being "housebound" which can be physical or mental or both.

?

As for my rating, I have stand alones that amount to 220% the rating criteria takes me just over 96% which gave me a 100% P&T rating.  I have not asked to be TDIU but my conditions make it impossible for me to work.  I am 60 yrs old on top of that and have a SMC K award. I am also on social security disability.

Edited December 3, 2021 by scottinmt

[scottinmt 4]

This is what I am questioning:

38 U.S. Code § 1114 - Rates of wartime disability compensation

(s)

If the veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more,

 

or, (2) by reason of such veteran’s service-connected disability or disabilities, is permanently housebound, then the monthly compensation shall be $2,993.

 

For the purpose of this subsection, the requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to such veteran’s house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran’s lifetime.

 

[Berta 4,216]

You stated:

"I thought the requirements for receiving SMC S were either:

1. 100% on one specific medical condition/issue and an additional or total of all other medical issues being 60% rated.  or..."

That would need to be one service connected condition rated at 100% and/or***

"2. The actual merits of your condition that support you being "housebound" which can be physical or mental or both."

***If the housebound evidence regards a service connected condition- or  a Section 1151 condition.

The rating sheet can reveal whether SMC S should be awarded but HB is diferent from SMC 100 plus 60 regulation.

Can you scan and attach here th last rating sheet you got from the VA?

Cover your C file #name, address prior to scanning it.

I applied for both theories of entitlement and was awarded (as an accrued benefit- I am widow of a veteran) under both theories but was paid properly only for one theory.

This was a CUE claim- searchable here- but my point is the last rating sheet on my husband was generated as an award of DIC about 3 years after he died.

The rating sheet attached to the award clearly revealed 100% P & T for SC PTSD and independently 80% (raised to 100%) for a Section 1151 stroke ( I had proven malpractice on that issue and other diabilities he had,-the 100% plus over 60% independent diability.)

I had to supply medical evidence of Housebound, and there was plenty of it in his medical records and within a statement I also made to the VA.

You also stated:

" I do not have a service connected mental health diagnosis but have seen VA Psychiatrists since 2011." Is it at all possible that the MH issue could be service connected? Did you try to get it service connected and they denied?

Nothing is impossible- I helped a vet years ago who continually prosecuted his claim for inservice bipolar depression for over a decade, and the BVA awarded it and he got almost 1/4 a million in retro.

If I still have the BVA case I will post it here.

 

 

 

Edited December 4, 2021 by Berta
added more.

[scottinmt 4]

Berta,

I haven't been online for a few years but you and Asknod really helped me with pulling together my 100% rating documentation, I will always be appreciative of that.

I will dig out the last rating and post to this string.

Scott

[scottinmt 4]

6 hours ago, Berta said:

You stated:

"I thought the requirements for receiving SMC S were either:

1. 100% on one specific medical condition/issue and an additional or total of all other medical issues being 60% rated.  or..."

That would need to be one service connected condition rated at 100% and/or***

"2. The actual merits of your condition that support you being "housebound" which can be physical or mental or both."

***If the housebound evidence regards a service connected condition- or  a Section 1151 condition.

The rating sheet can reveal whether SMC S should be awarded but HB is diferent from SMC 100 plus 60 regulation.

Can you scan and attach here th last rating sheet you got from the VA?

Cover your C file #name, address prior to scanning it.

I applied for both theories of entitlement and was awarded (as an accrued benefit- I am widow of a veteran) under both theories but was paid properly only for one theory.

This was a CUE claim- searchable here- but my point is the last rating sheet on my husband was generated as an award of DIC about 3 years after he died.

The rating sheet attached to the award clearly revealed 100% P & T for SC PTSD and independently 80% (raised to 100%) for a Section 1151 stroke ( I had proven malpractice on that issue and other diabilities he had,-the 100% plus over 60% independent diability.)

I had to supply medical evidence of Housebound, and there was plenty of it in his medical records and within a statement I also made to the VA.

You also stated:

" I do not have a service connected mental health diagnosis but have seen VA Psychiatrists since 2011." Is it at all possible that the MH issue could be service connected? Did you try to get it service connected and they denied?

Nothing is impossible- I helped a vet years ago who continually prosecuted his claim for inservice bipolar depression for over a decade, and the BVA awarded it and he got almost 1/4 a million in retro.

If I still have the BVA case I will post it here.

 

 

 

Berta, I looked through my award letter and never does it state anything regarding SMC other than an SMC K award I received back dated to 2004.

As for your question about mental health, no I never submitted a claim as I was already at 100% when I thought about it.  I do have VA psych notes and care back to 2011 and they did diagnose me with a major depressive disorder several years ago due to the impact of watching my physical health deteriorate and no longer being able to do the things I enjoy.  I have been on multiple anti-depressants for years.  I just didn't know if I should submit a claim for service connection at this time in order to get it documented.

I am also on social security disability and have been for a couple years now.  Should I also ask the VA to note me as TDIU using the SSD as support?

Lastly, my wife effectively provides aid and attendance for me, I don't know what I would do without her.  I only leave the home for medical appointments and the occasional haircut.  The reasons for both are due to limitations due to my service connected medical issues.

 

Thanks so much for everyone's help.  My brain doesn't function as it once did so please forgive me if I am unclear or seem thick.

[pwrslm 481]

Secondary conditions can kill you. IF they are not SC, your spouse gets no DIC if you die. Pursue the secondary conditions. 

I am not really great on A&A, but the limitations leading up to A&A all have to be SC. If your secondary conditions contribute to your housebound condition, you need to get them SC to get A&A I think. If not the VA can claim the A&A is caused by non-SC conditions and you will be denied.

 

You already have 100%. TDIU is for those with less than 100% that brings them up to 100%. No need to worry about TDIU.

Edited December 5, 2021 by pwrslm

[broncovet 4,251]

You posted:

Quote

stand alones that amount to 220% the rating criteria takes me just over 96% which gave me a 100% P&T rating.  I have not asked to be TDIU but my conditions make it impossible for me to work.

With 220 percent, you should likely qualify under Statuatory SMC S,or above.   Key is DO YOU HAVE A SINGLE 100 percent.  If you read the regulations, SMC requires a single 100 percent.   The VA has a "duty to maximize your rating".  This means if you qualify for tdiu, and it results in you being qualified for SMC S, under Bradley vs Peake, then VA committed an error by NOT giving you tdiu, assuming you are unable to work due to sc conditions.  You may need to apply for tdiu, however, VA should have sent you the tdiu form and told you to apply, "if your file shows you told your doctor or the VA you were not working".  

I think there is a great chance you are due years of backpay..for SMC S..its about 370 per month.  But I would have to review your file to know, as well as Berta suggested your decisions.  

The first step, if you have not already done so, is to apply for tdiu and Smc s. (probably a supplemental claim).  

If denied, then we can give you advice on avenues of appeal, but you dont want to appeal something never applied for.  Its my "opinion", that, even tho its unnecessary for Veterans to APPLY for SMC, you should do so anyway, because many VA employees DONT consider you for it like they should.  

My advice:  Apply for SMC s and tdiu (unless you have been specifically denied for both). 

Given that you have 220 percent, you may well be eligible for a higher level of SMC....SMC L..for Aid and attendance.   Remember, the regulation clearly states that "a family member can provide A and A" and you still get the benefit.  

Example:  If this family member who is helping you, moved out, would you do ok?  In other words can you do everything yourself..remember your medications, cook, clean, dress yourself, feed yourself, bathe yourself, keep your home safe and in order, drive yourself to appointments, etc?  If a family member is doing one or more of these things, then you likely need A and A.  

    If in doubt, when you apply, ask for tdiu, SMC S, and a and A.  Let Va sort it out.  Dont limit yourself.  

Edited December 5, 2021 by broncovet

[scottinmt 4]

Broncovet, I do not have a single 100% rating.  My highest individual rating is 60%.  Thank you for the feedback and guidance.

Scott

[broncovet 4,251]

CCK law is the expert on SMC.  

Did you know "you dont have to hire them" for them to give you advice?  

Let me give an example:

Lets say you contact CCK law, send them access to your file, or relevant documentation, and they, after reviewing your info, say, "We think you are eligible for SMC K, SMC L, and (more)."  We will represent you if you sign a fee agreement form.  

Ok.  LISTEN carefully to what they say.  They may even tell you to apply for these, and, if denied, contact them again.  If they offer representation for, Say SMC L, then you are likely eligible and can take their advice, if you elect, and apply it on your own without an attorney.  Or you can hire them.  Your choice.  You are not under any obligation to hire them if they review your file, and give you advice.  Only if you sign a fee agreement with them, can they get paid from you.  

 

https://cck-law.com/practice-area/veterans-law/ 

In the upper right hand corner it says, "Free case evalution".  

OR an alternative.  

"If" you think you may need additional doctor statements (IMO), then consider Hill and Ponton instead. 

https://www.hillandponton.com/va-benefits-special-monthly-compensation/

Hill and Ponton has a reputation for "upfronting" the cost of an IMO, "if" they think it will be needed to win your claim.  (You see many Vets NEED an IMO to get benefits, but dont have the upfront money to pay for a sometimes costly IMO.)

To know whether or not you will need an IMO, will likely be based upon "whats already in your file".  That is, you may well meet the criteria straight away, without an IMO.  

Edited December 5, 2021 by broncovet

[Berta 4,216]

The info here is confusing to me , scottinmt-

You stated:

" I received my 100% P&T rating in the spring of 2016 backdated to the summer of 2015." And then:

"Broncovet, I do not have a single 100% rating.  My highest individual rating is 60%."

I am sort of assuming that you get TDIU based on this regulation:

"Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a)."

https://www.va.gov/vetapp20/files1/20004635.txt (denial of a widow's claim for earier EED of TDIU as an accrued benefit.)

But then again you might have fallen into the last part of that regulation.

TDIU is paid at the same rate as 100%.

Certainly , if the MH disability can be linked to your service, you should claim it.

But the Rating sheet will reveal more info,and also their last decision will too,if you can attach here a redacted copy of thse documents.

 

[scottinmt 4]

Broncovet -  I contacted CCK Law.  I spoke with a case evaluator on the phone who thought I was most likely eligible for A&A.  As you stated however they wouldn't help until I applied and was turned down.

Berta, I am sorry if I confused you.  As I mentioned my brain doesn't process information well at this point and my ability to communicate thoughts is a bit...lacking.

Rated Disabilities:

60% Diabetes I

40% Neuropathy Right Upper

30% Neuropathy Left Upper

30% Intestinal Neuropathy

30% Neuropathy Incontinence

20% Neuropathy Right Lower

20% Neuropathy Left Lower

10% Diabetic Retinopathy

240% total

These per the rating table take me to 96%

Rated to 100% Permanent and Total per award letter

[Berta 4,216]

Thanks!  Now I understand this better-

If you can fulfill the Housebound criteria, you should claim housebound- or if you have any service nexus for the MH issue ( or if it is, in fact ,due to the ratings above*) you should claim it. Here is the HB form to file, 

https://www.vba.va.gov/pubs/forms/vba-21-2680-are.pdf

* An MH issue can be secondary to many SC diabilities, but that usualy takes a strong IMO/IME

In this case the veteranThe examiner concluded that it was more likely than not that the Veteran’s depression was proximately due to or the result of his ulnar neuropathy and/or lumbar spine DDD. 
This veteran had a difficut ordeal but he succeeded:

"ORDER

Severance of service connection for lumbar spine degenerative disc disease (DDD) was improper; restoration of service connection for lumbar spine DDD is granted.

Severance of service connection for depression secondary to service-connected conditions was improper; restoration of service connection for depression secondary to service-connected conditions is granted."

https://www.va.gov/vetapp21/files4/a21007480.txt

Not the best case I searched for ,but it shows that a MH issue can be secondary to a SC disability.

 

The examiner concluded that it The examiner concluded that it was more likely than not that the Veteran’s depression was proximately due to or the result of his ulnar neuropathy and/or lumbar spine DDD. 
was more likely than not that the Veteran’s depression was proximately 
due to or the result of his ulnar neuropathy and/or lumbar spine DDD. 

Edited December 7, 2021 by Berta
cloud

[broncovet 4,251]

Great idea, Scottinmt.  (Following my advice, and contacting CCK on SMC issues).  

It sounds like they gave great advice:  Apply for A and A.  Should you get denied, you may consider contacting CCK law, again.   However, if it "were" me, I would appeal to the BVA, and "only" if the board also denied me, would I hire CCK law.  

REason:  Its not that difficult for a Vet to appeal to the board.  You fill out the applicable forms, and probably a statement as to "why" you think their denial was wrong.  

But, its a different animal at the CAVC.  Importantly, if denied by the Board, MOST law firms will represent you (if they think you have good cause for appeal) at no cost.  That is, EAJA nearly always pays attorney fees at the CAVC level if the Veteran wins.  If the Veteran does not win at the CAVC, there are no fees due by the Veteran, as almost always, in Veterans law, the case is taken "on contingency".  This means that unless the judge orders additional benefits, which result in retro, you owe the attorney nothing.  But, check your fee agreement, but this is typical in Veterans law.  

[scottinmt 4]

Thank you Berta, I am in constant pain which has a lot to do with my mental condition and seeing my body fall apart (loss of strength and feeling in my hands and feet as well as the digestive issues) prevents me from doing the things I once enjoyed such as hiking, playing the guitar, pretty much anything that requires movement has lead to my depression.  I am on doses that exceed the max recommended for gabapenton and fluexetine.

[Berta 4,216]

I can certainly understand that  that these diabilities would cause anyone mental distress.

You stated your EED was 2015 for the award , but were these disabilities diagnosed prior to that date, maybe even by a private doctor?

You mentioned you had VA MH care back to 2011- would your records reveal that you had the same SC disabilities then ,but you had not filed a claim for them yet?

The DeLuca factor( searchable here) causes the VA to consider pain when adjudicating a disability.

Gabapenton is a strong pain medication and Fluoexetine is for treatment of depression. Your drug med profile in your VA medical records woud reveal when the VA started giving you these medications.

If there is a link ( nexus) to the same timeframe  that the diabetes and other issues disabled you, it would help support a claim for the MH issue.

Your VA psychiatric records might also help a lot,to prove the MH issue is due to the SC diabilities.

Do you receive SSDI ? and if so what is the SSDI for?

 

 

 

 

 

 

 

[scottinmt 4]

Berta,

Yes I have seen the VA for depression since 2011, I had been on meds at that time, I'm not sure how long I was off of them. The doctor who performed the C&P exams in 2016 told me I needed to see someone for depression as it was obvious to her that I had that going on.  It was actually the genesis for me to ask for a consult and to start seeing a psychiatrist.

I am on SSD, have been since 2018.  They never tell you why it was granted, but my claim explained my physical issues and the fact my brain just doesn't function well.  This is due to depression and the meds I take for pain relief and depression.  There is also a documented cognitive decline for those who suffer from long-term diabetes.

Edited December 8, 2021 by scottinmt