SMC question being separate and distinct

[Dot09]

I noticed a post a while from bronco stating that when determining SMC secondary conditions can not be used in the calculation for the 100 plus 60 for SMCs housebound. For in stance if I had a rating of 50 percent migraines secondary Bipolar 2 Panic Attacks then the 50 percent migraines could not be used because you are not separate distinct from the service connected condition. Is that correct?

My current 97% rounded 100 % schedular p/t

-70 percent bipolar 2 panic attacks- tdiu counts towards  100 requirement 

-30 percent right shoulder-counts towards 60 requirement

-20 percent left shoulder-counts towards 60 requirement

-10 percent right wrist-counts towards -60 requirement

-10 percent left wrist-counts towards -60 requirement

-10 percent tinnitus -counts towards -60 requirement

-0 percent right ear hearing- does nothing

-0 percent erectile dysfunction- does nothing 

-50 percent migraines- does nothing because it is not separate distinct

-50 percent sleep apnea- does nothing because it is not separate distinct 

Claims yet to be filed

-Gerd secondary/aggravation shoulders medication NSAIDS/benzodiazepines/antidepressants/bi polar panic attacks stress/obesity -30 percent 

Diagnosis- gastroesophageal reflux disease-2017 

30-Persistently recurring epigastric distress with trouble swallowing, heartburn, and regurgitation, with substernal or arm and shoulder pain, resulting in considerable impairment of health

-IBS secondary/aggravation Gerd medication Malox/bipolar 2 panic attacks stress/shoulder medication NSAIDS/antidepressants -30 percent 

No diagnosis 

30% rating for people who suffer from severe symptoms. Alternating diarrhea and constipation, consistent diarrhea, and constant abdominal stress are all considered severe symptoms under this rating.

-Cervical strain aggravation right/left shoulder inflammation and flare ups -0 percent 

Diagnosis- Neck pain-2011

-Lumbar aggravation right/left shoulders over exertion -0 percent rating 

Diagnosis- displacement of lumbar intervertebral-2016

-left hearing loss of direct/ secondary/aggravation tinnitus -0 percent

No diagnosis 

 

In total if awarded it would bring me to 99% schedular combined bringing a 100 % schedular p%t

 

Also my Right shoulder, Left shoulder, Right wrist, Left wrist, and tinnitus will hit its 20 year protection in 2024. I will wait until then before I file my claims. In the mean time I will continue to be treated and document evidence to strengthen my claims.

P.S. since I’m being represented by an attorney for a BVA appeal on my CUE from 2014 and an increase in Mental Health 2022 claim. I’m sure it will be a couple years before they decide. That will allow my protections to settle in and then I will file.

Edited December 9, 2023 by Dot09

[Dot09]

Bronco

How did you discover this information and what ever happened to your appeal with smcs ?

[Dot09]

Response from my attorney 

You can count secondary conditions towards the 100/60 plus requirement for smcs – any service-connected condition can count toward either part- 1) being a single disability that is 100% disabling or 2) being part of additional ratings that combine to 60% or more

 

Bronco 

This is conflicting with your other post that you can’t count secondaries. Where or who told you that you can’t?

Edited November 7, 2023 by Dot09

[broncovet]

You got part of what I said correct, the other part I did not say.  Here is the regulation, from 38 cfr 3.350, in relavent part:

Quote

(i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The special monthly compensation provided by 38 U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and,

(1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or

(2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.

  

 Im not sure where you got the part about not counting secondaries.  I paraphrased it as "a single 100 percent disability plus an additional (combined) 60 percent, seperate and distinct." I dont recall saying you cant count secondaries, I said they had to be seperate and distinct.  If I did post something about not counting secondaries, then my interpretation was a stretch, likely incorrect, and an error on my part.  It wont be my first error, nor will it be my last.  

As it says, they have to "involve different anatomical segments or bodily systems. "

Stick with reading the regulations, not my or other's paraphrase.  Im not competent to interpret regulations, Im neither a judge, nor a lawyer. 

A secondary condition may or may not "involve different anatomical segments or bodily systems".  I dont make diagnosis, and I am not competent to decide if condition A and secondary condtion B "involve seperate anatomical segments or bodily systems."  Ask your doctor if in doubt.   

 

[Vync]

@Dot09 Here are a few links which might help you:

This is directly from M21-1 which is VA's procedures manual. This explains how they would handle it and related laws.

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000177480/M21-1-Part-VIII-Subpart-iv-Chapter-4-Section-A-Special-Monthly-Compensation-SMC?query=smc-s housebound#10

 

This is from a law firm explaining it. There is a video to watch also.

https://cck-law.com/video/va-housebound-benefits-special-monthly-compensation/

 

[Dot09]

Bronco 

Thanks. I wasn’t trying to call you out. I just couldn’t remember exactly what you said in your post. The only thing I do remember is that since your sleep apnea didn’t count towards the 100/60 you should have not bothered filing the claim.

Vync

Thank you for the links

[Dustoff1970]

Bronconvet you are entirely correct.  THE VA  treats secondary sc conditions same as primary or original sc conditions and the secondary do qualify a vet for SMC-S  if the additional disability/s add up to at least 60% or more and are for different parts of the body and separate from the single 100% or TDIU (100%) original disability.

Another disability caused by a secondary sc disability can also be service connected by VA.

As a real world  person experience example is my BVA award of OSA Sleep Apnea at 50% due to or SECONDARY to my VA service connected Nam PTSD and VA medications.

This 50% added to my then 30% service connected Nam AO heart disease exceeded the minimum 60% needed for me to receive SMC-S.  My 100% TDIU was based upon a single disability of PTSD at 70%. 

Yes there are two separate SMC-S ratings. 

1. SMC-S1 is for housebound in fact and must be diagnosed by a medical professional where vet cannot leave the house due to serious physical or mental disability and usually requires the aid of a part or full time care giver.

2.  Is the statutory SMC-S2 rating that has nothing to do with being physically housebound but based upon an additional disability/s of at least 60% in addition to a 100% for a single separate disability.  TDIU counts as a 100% rating for this purpose by regulation and M21.  Veteran is not confined or prohibited from leaving his/her residence.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

 

 

 

Edited November 8, 2023 by Dustoff1970