Can I claim SMC S

[Spaceace1954]

I recently received a BVA award for HTN rating pending with 4 others being remanded to RO.

My current ratings are Sleep Apnea 50, DMII 20, CAD 60, Back L5 S1 20, L-Knee 10, R-Leg Neuropathy 20, DJD L- Leg 10, depressed Mood 50, L-Leg neuropathy 10 Neurogenic Bladder 10, Sciatic Nerve Neurogenic 10. I was at 90% for several years and in Oct 2019 I had LAD by-pass surgery and was awarded 100% P&T. My goal was to continue to work my boss and I have known each other for 35 years so we worked out a plan so I would not have to travel much that lasted about a year so I have been unemployed since 1/2021.

Any info on if I should file a claim would be Helpful, I thank all in advance for your input.

 

[broncovet]

There is a smc s, which is temporary, "convalescent leave".  It means that its a temporary bump, when you have some types of surgery, and are laid up.  The convalescent 100 percent, often means you get smc s temporary, while in hospital and/or recovery for a year or so.  This is what this appears to be, but, are you still getting smc s?  In other words, with the additional 100 percent convalescent, it could easily bump you to smc s, but only temporarily.  

As far as "reinstating" the temp smc s, the only way to do that is to qualify permanently, such as through the methods I previously described, in my above post.  

 

[pacmanx1]

On 8/10/2023 at 9:21 AM, Spaceace1954 said:

I understand waiting on the remanded item(s) COPD, Headaches, Sinusitis, etc., but How can I get TDIU if I am already 100% P&T as of 2019? Also how does Buie V. Shinseki apply ? or does it?

Based on your post you are currently rated 100% P & T with the effective date of 2019, but you have four remand issues pending. Let’s say the VARO decides one (1) of your remanded issues makes you unemployable and grants you TDIU based on that Sole disability, with an effective date of January 2010 (MADE-UP). That means at this particular time you are entitled to the difference of TDIU with the effective date of 2010 and the VARO should review the rest of your record to determine when your other disabilities adds up to plus 60% to grant you SMC-S. Depending on when you have reached the criteria, that means that your TDIU rating and your SMC-S rating could both be before your 2019 100% P & T rating.

Buie is a CAVC Precedential Decision witch states:

The Court has held that the order in which disabilities are service connected is not relevant to VA's determination of a claimant's eligibility for special monthly compensation under 38 U.S.C. section 1114(s).  Whenever a veteran has a total disability rating, schedular or extra-schedular, based on multiple disabilities and the veteran is subsequently awarded service connection for any additional disability or disabilities, VA's duty to maximize benefits requires VA to assess all of the claimant's disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to special monthly compensation under section 1114(s).  If, after such an assessment, VA determines that the claimant is entitled to special monthly compensation, the effective date of the award of special monthly compensation will be the effective date assigned for the award of benefits for the final disability that forms the relevant combination of disabilities.  Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010), as amended (Apr. 21, 2011).

The key here is that the VA has a duty to assess and maximize your benefits and if it is determined that you have a TDIU plus 60% between 2010-2019 then the VA should award you those benefits. Of course, the 2010 effective date is just a made-up date that I chose, your effective date must be supported by your evidence of record. Now with all that said, it does not mean that the VA will not fight you or try to lump some of the new ratings in with your current rating to cheat you out of benefits.   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Spaceace1954]

Hello Broncovet

Again thanks for your input.

No I am not currently receiving SMC S at this time.

Sounds right I had my surgery 10/8/2019, attemped to return to work on a part time basis for about a year then just thought in the towel because I was not able to travel as before. Guess I should have followed up on it then.

[broncovet]

Sure, it would have been better to follow up then, but, you can still get your smc s as long as you dont do this one thing:

 

Quote

QUIT.

Never give up.  

[Spaceace1954]

Hello PacmanX1

Thank you for the info, I do understand most of it , but I did not stop working until about a year after my CAD rating 1/2021

I thought I would balance right back.