SMC-S What does Separate and Distinct mean?

[Otrgypsy]

When I first posted a question about SMC S it was very similar to this. However, in the examples I find in the code they're indicating that if one has lost a leg, they cannot also be compensated for losing the foot. My case is not like that. I have 6 distinct disabilities that are separately rated and affect different parts of my body. 1.  brain damage with acquired psych disability 70% plus TDIU;  2.  OSA and insomnia 50%;  3. intestinal conditions  30%  4. left leg neuropathy 20%;  5.  right leg neuropathy 20%; 6. anal leakage 10%.

Due in part to my lack of knowledge and understanding  when I drafted the claim without help in 2014, and complete ignorance of SMC the last decision of the BVA referred to  all the claims other than brain as secondary to the brain injury. In reality the OSA MAY  be connected. The other 4 definitely are not. It seems to me that it shouldn't matter.   The language awarding TDIU claimed to grant it based on all disabilities. However, all the evidence submitted makes it abundantly clear that I am entitled to TDIU when only the 70% brain/psych issues are considered. I have no concern about winning on that particular issue on appeal.  Even  if I do not include the 50% rating for OSA, my additional disabilities are still an additional 60%

Assuming, as I do, that I can convince the Court of Appeal that I am entitled to the TDIU for the brain issues alone, Am I not entitled to SMC S?

the U.S.C. provides :

    (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,

Does anyone have authority on what separate and distinct means?  WHAT I AM WORRIED ABOUT IS CAN THEY JUSTIFY DENIAL OF SMC BECAUSE THE DECISION SAYS THAT ALL DISABILITIES ARE CONNECTED TO THE BRAIN INJURY AND THEREFOR THEY ARE NOT SEPARATE AND DISTINCT?

Edited April 10 by Otrgypsy
CLARITY

[Vync]

I'm not an expert on SMC-S, but did have it for a few months and will try to describe my interpretation of it.

Think of service connection (SC) as direct or secondary. Direct SC means it is not related to any other disability. Secondary is as a result of another disability or the side effects of treatment of another disability.

 

Separate and distinct means the two percentages cannot be related to each other or one being secondary to another.

 

Example 1:

Vet has 100% for PTSD.
Vet also has a separate 60% rating for something completely unrelated to their PTSD.

These are separate and distinct.

 

Example 2:

Vet has 100% for PTSD, but secondary to that they have a 60% rating due a disability secondary to PTSD.

These ARE NOT separate and distinct because the 60% is secondary to the 100% for PTSD.

 

I hope this is helpful. I expect other members to comment, too.

[Otrgypsy]

Yes, my concern is that because they have called my other disabilities secondary that that renders me ineligible for SMC S. That would be very much like the VA, but it doesn't make any sense. Additional separate injuries to different parts of the body are just as disabling whether or not they are secondary. I have been looking for an authoritative ruling on that.

Frankly, I did not understand the nature of injuries at the time I filed and I called the lesser disabilities secondary. However, Most all the evidence that was submitted shows it was actually multiple injuries from the same cause. The only exception is there is one opinion from a VES doc who meant to be helpful that called everything else secondary, but that had a lot to do with the questions they put to him. And I can get a legitimate opinion from another doc explaining his mistake which opinion would be fully supportable with medical literature. A damaged Blood Brain Barrier, does not cause or allow damage to the peripheral nerves which have their own protective barrier. The extra 80% of disabilities are all below the neck and are the result of peripheral nerve damage.

[broncovet]

One defination of seperate and distinct:

involve separate anatomical segments or body systems.

You should read up as to what the CAVC says about it, by searching court cases. 

I dont think "primary" or secondary matters, but read CAVC/BVA cases to be sure.  I dont have time to do that research for you today.  

Once a condition is service connected..it does not matter if its "primary", "secondary", presumptive, etc. They are treated the same.  If you look at ebenefits "letters", there is no distinction between "Primary", "Secondary", or Presumptive.   You are either SC for a condition or you are not.  

And, its good for you to learn to search case law anyway...it will benefit you.  

MY VBM (Veterans Benefit manual) is way old, or I would look it up for you.  If you dont know, the VBM is often used as training for attorneys.  The VBM doesnt make "opinions", they cite precedential case law.  

You can buy a VBM from Lexus Nexus, I think they are "about" $250, if they have not gone up.  I have both a paper copy and digital.  Its for year 2014, and Im not buying the new one. 

Edited April 11 by broncovet