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TDIU and SMC-S

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Lemuel

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  • HadIt.com Elder

Check the qualifications for SMC.  There ADA items that must be met to qualify that are not necessarily met with disability ratings.  ie; do you need help getting dressed.  Do you need to have help bathing.  Do you need help to eat. etc.  is on the list.

I have three items. that are on the list and CCK took my case to the BVA for both me and my wife.  Yes, your wife is also qualified for SMC.

According to the VA Counsel at the Haskell v McDonough, 22-1018 hearing, both Kazuko and I were qualified for SMC-T when I put in our claims for SMC.

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Posted (edited)

I hope this works out; I split the topics to avoid the OP (Original post) to not hijack it. 

In my case I only qualify with the numbers, what makes my decision so screwed up is that it confirms that the LHI medical examiner’s opinion stated my new disability precludes employment and list my disabilities but no consideration of SMC-S. Based on that decision (itself) it should show that I met the rating criteria of a single TDIU rating plus an additional 60% and the decision did not mention any other benefits where the VA failed to maximize my benefits. I know there is a major difference in maximizing the veteran’s rating percentage (which the VA did) but the VA failed to maximize my benefits by not considering that the decision itself raised the issue of SMC-S by acknowledging my LHI medical examiner’s opinion that stated my disability precludes employment. That is a single rating of TDIU plus I was already rated as 100% P & T schedular. The decision to award me an EED eliminated the fact that that rating decision should have considered SMC-S benefits.

Edited by pacmanx1

My intentions are to help, my advice maybe wrong, be your own advocate and know what is in your C-File and the 38 CFR that governs your disabilities and conditions.

Do your own homework. No one knows the veteran’s symptoms like the veteran. Never Give Up.

I do not give my consent for anyone to view my personal VA records.

 

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relatively happy camper

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pacmanx1 - you may be correct but anytime a claimant gets a 100% he/she/them /they should request SMC "S."  I would never expect the VA to award something that wasn't applied for, as much as they fight you on every step of the way.

Have you read Buie V Shinseki; we have to do what we have to do but as far as I know there is no regulation that says a veteran must file for SMC benefits. In fact, Buie V. Shinseki states: 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).

I understand that it may be a lot easier and faster for a veteran to file a new claim, but Buie v. Shinseki is a precedential decision, and veterans should challenge the VA or file an appeal and force the VA to do their jobs.  With SMC benefits, when the criteria are met the VA should award the veteran's his/her benefits. With filing a claim for SMC, the VA could try to establish the effective date as the date of claim instead of the date that the entitlement arose. 

My intentions are to help, my advice maybe wrong, be your own advocate and know what is in your C-File and the 38 CFR that governs your disabilities and conditions.

Do your own homework. No one knows the veteran’s symptoms like the veteran. Never Give Up.

I do not give my consent for anyone to view my personal VA records.

 

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Vync

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I agree. It was probably automatic for you because they are supposed to check on it for TDIU.

Sorry for the confusion but my appeal is still pending.

My intentions are to help, my advice maybe wrong, be your own advocate and know what is in your C-File and the 38 CFR that governs your disabilities and conditions.

Do your own homework. No one knows the veteran’s symptoms like the veteran. Never Give Up.

I do not give my consent for anyone to view my personal VA records.

 

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  • Content Curator/HadIt.com Elder

@pacmanx1 No worries. Was just curious

"If it's stupid but works, then it isn't stupid."
- From Murphy's Laws of Combat

Disclaimer: I am not a legal expert, so use at own risk and/or consult a qualified professional representative. Please refer to existing VA laws, regulations, and policies for the most up to date information.

 

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