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?
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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?
CLARITY
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