16 replies to this topic

[SheilaLundlee]

I know everyone says SMC is confusing and I am joining that crowd. Here's my question:

1. I am IU for a single disability; in addition, I am

2. Cystocele/Rectocele - 50%
Depression - 50%

Do my two other disabilities qualify me for 100% + 60% = SMC (s)?

I've seen the question elsewhere but couldn't determine the answer....

Thanks,

Sheila

[Philip Rogers]

Yes, you should be and I believe they committed a CUE by not awarding it when they made the decision(s) that gave you those current ratings. You should be owed retro.

pr

I know everyone says SMC is confusing and I am joining that crowd. Here's my question:

1. I am IU for a single disability; in addition, I am

2. Cystocele/Rectocele - 50%
Depression - 50%

Do my two other disabilities qualify me for 100% + 60% = SMC (s)?

I've seen the question elsewhere but couldn't determine the answer....

Thanks,

Sheila

[SheilaLundlee]

Thank you!

Yes, you should be and I believe they committed a CUE by not awarding it when they made the decision(s) that gave you those current ratings. You should be owed retro.

pr

[broncovet]

I have seen similar issues argued on another board. The retired rater said it would depend on what issues
you were "IU" for. To qualify for Bradley vs Peak, your conditions have to be "independent" of each other. In other words were you "IU" for depression, IU for Cystocele, or both.

However, I have found that appeals takes an entirely different view than rating speciailists. Rating specialists goal is to "get that claim out" as fast as possible, so denials work well that way.

My guess is that you may eventually win, but it will take at least one level of appeals.

[Philip Rogers]

broncovet - she stated "I am IU for a single disability; in addition, I am"

2. Cystocele/Rectocele - 50%
Depression - 50%

Which I took to mean independently of her IU disability.

pr

I have seen similar issues argued on another board. The retired rater said it would depend on what issues
you were "IU" for. To qualify for Bradley vs Peak, your conditions have to be "independent" of each other. In other words were you "IU" for depression, IU for Cystocele, or both.

However, I have found that appeals takes an entirely different view than rating speciailists. Rating specialists goal is to "get that claim out" as fast as possible, so denials work well that way.

My guess is that you may eventually win, but it will take at least one level of appeals.

[john999]

I think she should be able to cue this and get retro if the two 50% ratings are independent of the IU. The VA is just remaining silent on the "S" question and IU because they figure they can save money. They don't want to go back and review thousands of IU claims to see if they should get "S". That would go for 100% schedular as well. I would file yeaterday and just ask for "S" based on Bradly v Peake.

[WAC-Vet75]

SheilaLundlee, look at our other threads concerning 100% plus 60% added....... we have plenty of ammunition for your CUE. Philip Rogers already had his case before the BVA, and now will hopefully be following through with the CAVC. Until someone gets this before the CAVC, the VA is going to continue to ignore the letter of the law/regulation, just like they have with so many other cases... Bradley v Peake is just one example where the VA, BVA, arbitrarily interpreted the law (though there was NO law/regulation to that effect) to THEIR advantage. File a NOD citing the CUE.

[steve&pat]

GO TO THIS VAOIG report from 1/24/2011 click on the hot bar and click onthe
(Full report PDF) at top and go to page 7 OIG has already noticed this and the VA is
supposed to be INSTRUCTED ON THIS ERROR THEY ARE MAKING.USE this like a FAST LETTER.

http://www.va.gov/oi...ary.asp?id=3738

STEVE & PAT

[WAC-Vet75]

GO TO THIS VAOIG report from 1/24/2011 click on the hot bar and click onthe
(Full report PDF) at top and go to page 7 OIG has already noticed this and the VA is
supposed to be INSTRUCTED ON THIS ERROR THEY ARE MAKING.USE this like a FAST LETTER.

http://www.va.gov/oi...ary.asp?id=3738

STEVE & PAT

"The veteran had additional disabilities totaling 60 percent disabling." I would love to see that case. Interesting that they didn't state, "the veteran had additional disabilities with a combined evaluation rating totaling 60 percent disabling", or "the veteran had additional disabilities totaling 60 percent disabling, in accordance with the combined rating table 38 USC 4.25", as the word "totaling" means sum up, as adding.

"In October 2006, an RVSR increased a veteran's evaluation to 100 percent. The veteran had additional disabilities totaling 60 percent disabling. However, the RVSR did not grant statutory housebound benefits (special monthly compensation) in accordance with established regulations. Regulations entitle veterans with a 100 percent disability and additional disabilities rated at 60 percent or higher to receive special monthly compensation. Because VARO staff did not grant the special monthly compensation, the veteran was underpaid $20,800. The VSC manager agreed stating the prior evaluation was clearly erroneous and took action to grant the benefits."

This was just from the sampling the OIG took, not every 100% case with additional disabilities!

BTW, FRIGGIN AWESOME find Steve&Pat!!!!!!

Edited by WAC-Vet75, 12 March 2011 - 07:55 PM.

[rakkwarrior]

See my CUE template on failure to assign SMC "S" awards.

[john999]

I got "S" based on TDIU plus 60%. It was a CUE. I got 8500 bucks in retro. It only took about 5 weeks to get it. I just sent in Statement in Support of Claim asking for "S" based on Bradley V Peake. I had one single rating of 60% plus 5 10% ratings above and beyond the IU.

[WAC-Vet75]

I got "S" based on TDIU plus 60%. It was a CUE. I got 8500 bucks in retro. It only took about 5 weeks to get it. I just sent in Statement in Support of Claim asking for "S" based on Bradley V Peake. I had one single rating of 60% plus 5 10% ratings above and beyond the IU.

Hopefully, we can get them to CUE, for using the combined rating schedule, for ratings over 100%, so our comrades will get their rightful entitlement!

[iraqx2]

I thought for SMC it was 100% for one disability and at least 60% for another. I man be wrong. I am just basing it on my own situation.

Good luck.

[john999]

It is total disability plus 60%, so someone with 70% TDIU and an extra 60% can get "S". Bradley vs Peake.

[Teac]

I know everyone says SMC is confusing and I am joining that crowd. Here's my question:

1. I am IU for a single disability; in addition, I am

2. Cystocele/Rectocele - 50%
Depression - 50%

Do my two other disabilities qualify me for 100% + 60% = SMC (s)?

I've seen the question elsewhere but couldn't determine the answer....

Thanks,

Sheila

Under Bradley V peake you may be entitled to SMC S Housebound. But Not so fast, depending on how your award for IU was worded, the va may have based the IU on your combined disabilities, even though it may only be one disability
that actually prohibits you from working. So if you get a chance read the award letter to be sure what the IU award was actually based on. If your other disabilities were awarded after IU.. then it won't be a question, but as you have presented it here
it could go either way.....,.

[hedgey]

Aruuuh?

What's this SMC stuff?

I maybe should start a new thread. The link to the IG report leads to a "This report not available at this time".

[Philip Rogers]

Hedgey - have you been playin' ostrich(sp), by keeping your head in the sand? We've been discussing this for a coupla yrs. Just search SMC "s" award & Bradley v Peake.

pr