Do I qualify for SMC-S

[MFZ]

 I am 100% P & T for a service connected aortic aneurysm.

I am 10% SC for hypertension.

I am 20% SC for painful surgical scars , bilateral lower extremities.

I am 30% SC for ischemic stroke with right homonymous hemianopia.

I am 10% SC for tinnitus.

I am also 0% SC for bilateral hearing loss.

I am also 0% SC for peripheral vascular disease of the right and left lower.

I represent myself , so I need advice as to if I qualify for SMC-S and if I do, how to go about filing for it.

 

[Berta]

Great advice Broncovet-those ratings might be old ones-

Here is another 2021 Housebound CUE Beauty:

"1. Beginning April 12, 2011, the Veteran met the criteria for SMC at the housebound rate. 2. The statutory and regulatory previsions extant at the time of the April 2013 rating decision were incorrectly applied to the record as it existed then, resulting in an undebatable error, the sort which, had it not been made, would have manifestly changed the outcome of the decision."

https://www.va.gov/vetapp21/Files11/A21017756.txt

This has been bothering me:

You said: I am 20% SC for painful surgical scars , bilateral lower extremities."

 "am also 0% SC for peripheral vascular disease of the right and left lower."

I assume you mean your lower extremities-----

I am not a doctor but I assume, and could be wriong, that the PVD caused the need for surgery , but does the "0" % indicate they CURED the peripheral arterial disease (PVD)in your lower extremeties?  

You also might have peripheral neuropathy from the ischemic brain problems.

Can you scan and attach any rating info you ( with date) have from the last decision? And the VA rationale behind these disabilities?

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

 

 

[FormerMember]

Mr. CUE---

Here's the meat of Akles v Derwinski:

Specifically, the Veteran asserts that the Board’s June 2001 decision failed to infer a claim for SMC from the evidence then of record.  The Veteran has emphasized the U.S. Court of Appeals for Veterans Claims (CAVC’s) earlier 1991 holding that a claim for increased disability compensation may include the “inferred issue” of entitlement to SMC, even where the veteran has not expressly placed entitlement to SMC at issue.  Akles v. Derwinski, 1 Vet. App. 118, 121 (1991).  The Veteran maintains the Board failed to apply the holding of Akles to the evidence then of record.  The Veteran notes that the June 2001 Board decision found that the Veteran’s service-connected knees were incapable of bearing weight, such that he was confined to a wheelchair, and asserts that such factual finding “undebatably” supports the Veteran’s was incapable of performing acts of balance and propulsion due to his service-connected knees.  In essence, the Veteran contends that the Board had already made all of the requisite factual findings necessary to establish entitlement to SMC based on the loss of use of the lower extremities, but ultimately failed to explicitly adjudicate such issue to the detriment of the Veteran.  The Veteran asserts that had this CUE not occurred, the outcome of the Veteran’s case would have manifestly been different - in addition to being granted the increased ratings for his bilateral knee disabilities, he would have also been entitled to SMC based on loss of use of his legs preventing natural knee action under 38 U.S.C. § 1114(m).

Both the CAVC and the Federal Circuit Court have held the RO's failure to address an implied claim is an action that can be challenged through a motion for CUE.  Evans v. McDonald, 27 Vet. App. 180, 185 n.3 (2014) (en banc); Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006).  When presented with such a request, VA must first give a full and sympathetic reading to the claimant's prior submissions to determine whether such a claim was reasonably raised.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004).  If it is determined that a claim was reasonably raised, VA must then determine whether such a claim is pending or whether it was adjudicated as part of a final decision.  If such a reasonably raised claim remains pending, then there is no decision on that claim to revise on the basis of CUE.  In that situation, the pending claim must be adjudicated by VA.  However, if VA determines that the claim was adjudicated, and is no longer pending, then the claimant may collaterally attack the resulting decision on the basis of CUE.  Richardson, 20 Vet. App. at 71-72.  Stated another way, the Secretary’s failure to adjudicate a reasonably raised claim can be the basis of the CUE motion as to a final decision of the Secretary where the issue was relevant to a decision actually made.  Ingram v. Nicholson, 21 Vet. App. 232, 254-55 (2007).

VAOPGCPREC 4-2004 (May 28, 2004)

SMC may be granted to Veterans who are so disabled that they require regular aid and attendance or are housebound. Prejean v. West, 13 Vet.App. 444, 447 (2000)

[Mr cue]

Ask nod thank you this is my case in a nutshell. I had the evidence and they didn't inferr it.

And I was later granted it after I apply. But they have been fighting me about address anytime period before I apply.

Even after I had the court remand it smh.

Asknod I posted the extra schedulers tdiu rating decision.

It is under my post for help with a cue.

Tell me do u think that is all the evidence I need I believe it is

29 minutes ago, asknod said:

The Veteran asserts that had this CUE not occurred, the outcome of the Veteran’s case would have manifestly been different

 

[FormerMember]

As I am accredited, I am not permitted to conduct business on an open forum for fear of divulging PII. If you would, please send me an email with the scanned .pdf you mention attached to gagraham51@gmail.com. I would be happy to take a gander and see if anything jumps out and bites me on the eye. Please explain in the email the case or controversy contention, the cite/reg/statute you rely on and which VA violated and the outcome-determinative error if it isn't adequately explained. 

r

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[Berta]

Mark, you just answered my next question to you in the PM you sent to me.Thank you.

Please pass that info on to Alex-(asknod) 

Are you a Vietnam incountry veteran?

If not where did you serve and when.?

You presented in some ways a similar disability picture my husband did-he had multiple disabilities , to include PN and PAD, due to his undiagnosed and untreated Type !! diabetes.

I never claimed the PN and PAD, it was a small part of  2  IMOs from Dr. Bash. who diagnosed those disabilities and the DMII (from AO) and  I was happy to get the award and wanted to take a break from dealing with VA. They never rated his DMII at all. Another thing I should claim.

 

But the retro was a Very tidy sum....even retro for Chapter 35,in a separate decision, and a very nice REPS payment. REPS is searchable here.(Restored Entitement Program.)My former vet reps didnt have a clue on that. The App was part of the original DIC application.

AND most importantly Peace with Honor for my dead husband ( and for me- there  is no Peace with Honor knowing the VA caused his multiple disabilities and untimely death.

You will need a nexus for the DMII- that is why I asked about where and when you served.

 

 

 

 

[Berta]

Forgot to ask-what was your USMC MOS, when I asked where and when you served.

Vets have proven exposure to AO in CONUS, Korea, Thailand, , lots of places outside of Vietnam.

Also the PM said:

 "My vascular nurse says it's due to the diabetes, but with the popliteal aneurysm surgery, I'm not convinced of that."

Your nurse might be correct but the aneurysm also might be of an ischemic nature.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4773462/#:~:text=Ischemic heart disease (IHD) is,death following elective AAA repair.

My husband's undiagnosed and untreated DMII caused an ischemic 1151 stroke and 2 1151  ischemic heart attacks, all awarded due to his exposure

to AO in Vietnam- 1965-66 First Amphibious Tractor  Battalion.Danang.

But it seems, with the 100% P & T for the aortic aneurysm, that the DMII could be secondary to that, if no exposure to AO.

That 10% HBP might be the wrong rating as well. VA has been granting HBP as due to AO exposure in some cases, - all searchable here.

Alex  is an expert on SMC and will help you.

 

Edited February 11, 2022 by Berta
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