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Special Monthly Compensation At The Statutory Housebound Rate


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#1 carlie

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Posted 19 September 2010 - 02:35 PM

DEPARTMENT OF VETERANS AFFAIRS
Veterans Benefits Administration
Washington, D.C. 20420

July 22, 2009

Director (00/21)
All VA Regional Offices and CentersIn Reply Refer To: 211B
Fast Letter 09-33 SUBJ: Special Monthly Compensation at the Statutory Housebound Rate

This letter provides guidance for adjudicating claims involving entitlement to special monthly compensation (SMC) at the housebound rate based on a decision by the U.S. Court of Appeals for Veterans Claims (CAVC or Court) in Bradley v Peake.

Background

38 U.S.C. § 1114(s) provides that SMC at the (s) rate will be granted if a veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of a service-connected disability or disabilities. VA’s implementing regulation at 38 C.F.R. § 3.350(i) essentially mirrors the statutory language.

Prior to the CAVC’s decision in Bradley v. Peake, VA excluded a rating of total disability based on individual unemployability (TDIU) as a basis for a grant of SMC at the (s) rate. VA relied upon language in citing VAOPGCPREC 6-99, dated June 7, 1999, in which the General Counsel stated that a TDIU rating takes into account all of a veteran’s service-connected disabilities and that considering a TDIU rating and a schedular rating in determining eligibility for SMC would conflict with the requirement for “additional” disability of 60 percent or more by counting the same disability twice.

On November 26, 2008, the Court, in Bradley v. Peake, disagreed with VA’s interpretation and held that the provisions of section 1114(s) do not limit a “service-connected disability rated as total” to only a schedular 100 percent rating. The Court found the opinion too expansive because it was possible that there would be no duplicate counting of disabilities if a veteran was awarded TDIU based on a single disability and thereafter received disability ratings for other conditions.

The Court’s holding allows a TDIU rating to serve as the “total” service-connected disability, if the TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to SMC at the (s) rate.

The Court held that the requirement for a single “service-connected disability rated as total” cannot be satisfied by a combination of disabilities. Multiple service-connected disabilities that combine to 70 percent or more and establish entitlement to TDIU under 38 C.F.R. § 4.16(a) cannot be treated as a single “service-connected disability rated as total” for purposes of entitlement to SMC at the (s) rate.

New Evidentiary Standard

Based on the Court’s decision in Bradley, entitlement to SMC at the (s) rate will now be granted for TDIU recipients if the TDIU evaluation was, or can be, predicated upon a single disability and (1) there exists additional disability or disabilities independently ratable at 60 percent or more, or (2) the veteran is permanently housebound by reason of a service-connected disability or disabilities.

For example, a veteran in receipt of TDIU based on a 70 percent evaluation for post- traumatic stress disorder (PTSD) and other service-connected disabilities consisting of a below-the-knee amputation, rated 40 percent disabling; tinnitus, rated 10 percent disabling; and diabetes mellitus, rated 20 percent disabling, would be entitled to SMC at the (s) rate if it is determined that PTSD is the sole cause of the unemployability, as the other disabilities have a combined evaluation of 60 percent.

It is important that, for purposes of section 1114(s)(1), no disability is considered twice to ensure that the prohibition against pyramiding contained in 38 C.F.R. § 4.14 is not violated when determining which disability results in TDIU entitlement and in determining which disability or disabilities satisfy the independent 60 percent evaluation to award SMC at the (s) rate.

However, for purposes of section 1114(s)(2), a disability may be considered in determining TDIU entitlement as well as in determining whether a veteran is permanently housebound as a result of service-connected disability or disabilities because that provision does not specify “additional service-connected disability or disabilities” as in section 1114(s)(1).

Accordingly, a determination for entitlement to SMC at the (s) rate must be made in all TDIU cases where potential entitlement to SMC (s) is reasonably raised by the evidence.

Current Status

Regulations and M21-1MR, IV.ii.2.H.46.a will be revised to comply with the Court’s decision. In the interim, the Court’s holding will be applied to all pending and future claims.

In applying the Court’s holding, if the medical evidence is insufficient to render an adjudicative determination as to whether the veteran’s TDIU entitlement solely originates from a single service-connected disability, and there is potential entitlement to SMC at the (s) rate, the veteran should be scheduled for a VA examination to include an opinion as to the cause of unemployability.

Questions

Questions concerning this fast letter and other issues related to this issue should be submitted to the VAVBAWAS/CO/21FL mailbox.

Bradley G. Mayes
Director
Compensation & Pension Service


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#2 jmack

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Posted 08 October 2010 - 11:30 AM

Sure do wish that my concentration and ability to retain information was better, because this seems to be great info :huh: :sad:

#3 john999

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Posted 08 October 2010 - 01:59 PM

I have the ratings and I applied for "S", so let's see. The lawyers at NVLSP said it is law. I sent in my claim about two weeks ago.

#4 souldeliverer

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Posted 03 December 2010 - 12:05 AM

I AM COMPLETELY UNABLE TO HANDLE MY VA PAPERWORK. I DONT KNOW WHAT TO DO. I CANNOT GET MY CRAP TOGETHER. I NEED TO FILE STUFF, AND CANT ORGANISE MY THOUGHTS ENOUGH TO GET STUFF IN LINE. WHAT CAN I DO???

#5 john999

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Posted 03 December 2010 - 09:03 AM

Take your stuff to a VSO or hire a lawyer. For statutory HB all you have to do is have the percentages and just ask for it. If you are IU plus 60% that is all you need. You don't have to prove anything. Just write a letter to your VARO stating you are IU or 100% plus 60% and ask for "S".

#6 USNDW

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Posted 27 May 2011 - 11:52 PM

New Evidentiary Standard

Based on the Court’s decision in Bradley, entitlement to SMC at the (s) rate will now be granted for TDIU recipients if the TDIU evaluation was, or can be, predicated upon a single disability and (1) there exists additional disability or disabilities independently ratable at 60 percent or more, or (2) the veteran is permanently housebound by reason of a service-connected disability or disabilities.



& that statement right there persuades me to believe that if a Veteran has a rating that can be used to award IU, then the VA must use that first in order to maximize the Veterans compensation benefits. It does not rule out Veterans whop already have a 100% schedular rating. I have a single condition @ 60% that without doubt kept me from working and will in the future. That single rating can be used to grant me IU, and then the rest of my rated conditions would easily meet the 60% additional as well.

#7 Pete53

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Posted 28 May 2011 - 09:25 AM

Bradley v Peake is a giant victory for Veterans who meet the definition as housebound. My question is can Bradley v Peake be used to ask for CUE if VA did not rate for SMC prior to the decision?

#8 john999

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Posted 28 May 2011 - 09:29 AM

Pete

I would try to CUE it. As I understand it Bradley is not a new law or regulation, but is the proper interpretation of an existing law or regulation. The VA was improperly not awarding HB to vets who were total plus 60% all along.

#9 Philip Rogers

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Posted 28 May 2011 - 12:05 PM

I still see a problem with their "Fast Letter." See the bold underlined portions. They state "independently rated at 60% but then use a combined evaluation of 60%." WacVet75 and I discussed this previously, here, and the RO's are still using the combined ratings standard, rather than independently rated standard. I called the NVLSP offices, for an official clarification, but needed to wait for a call back and I'm unavailable at this time to wait for the call back.

New Evidentiary Standard

Based on the Court’s decision in Bradley, entitlement to SMC at the (s) rate will now be granted for TDIU recipients if the TDIU evaluation was, or can be, predicated upon a single disability and (1) there exists additional disability or disabilities independently ratable at 60 percent or more or (2) the veteran is permanently housebound by reason of a service-connected disability or disabilities.

For example, a veteran in receipt of TDIU based on a 70 percent evaluation for post- traumatic stress disorder (PTSD) and other service-connected disabilities consisting of a below-the-knee amputation, rated 40 percent disabling; tinnitus, rated 10 percent disabling; and diabetes mellitus, rated 20 percent disabling, would be entitled to SMC at the (s) rate if it is determined that PTSD is the sole cause of the unemployability, as the other disabilities have a combined evaluation of 60 percent.

pr

#10 sgmdae

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Posted 29 May 2011 - 07:14 AM

I have read literture and post all weekend.
Let me state my facts, and give me your best advice
8 Nov 2009, rated, effective 2 June 2009
100% PTSD permanent
17 Mar 2010 rated, effective 2 June 2009
20% Degenrative Joint disease of the right Ankle
20% Degenrative Joint disease of the Left Ankle
Bilateral rating should be includend in overall for ankles
10% Right Knee degenerative joint desease
10% Tinnitus
0% Bilateral Hearing
0% Gastroesophageal
1 Apr 2010 rated, effective 2 June 2009
20% Right acromioclavicular (AC) joint arthrosis
Using, VA math, straight math, and consisting the added Bilateral for ankle, I think it is round up to 60%, or exceeds
I would appreciate opinion, and computations
Thank you

#11 jbasser

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Posted 29 May 2011 - 07:20 AM

100 percent Ptsd P and T
plus 20
20
20
10
10

That equals 60 so yes. You shouls ask for SMC S.

J

#12 Philip Rogers

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Posted 29 May 2011 - 07:36 AM

I haven't verified jbasser's figures but I'm sure he's correct, however, I do feel, he may have failed to mention that you should ask for that SMC "s" award, retro to the date at which time the last award was that brought it to the 60% level, because, I believe, the VA is supposed to proactively award that "s" award, meaning the veteran doesn't need to apply for it, the VA is required to award it w/o the vet asking. It is assumed the veteran doesn't know about it. Anyone, please correct me, if I'm wrong? Thanks!

pr


100 percent Ptsd P and T
plus 20
20
20
10
10

That equals 60 so yes. You shouls ask for SMC S.

J



#13 WAC-Vet75

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Posted 29 May 2011 - 10:23 AM

Just to note..... If, ratings in excess of 100%, are to be added, as I and other believe to be so, and not combined, I would venture to say that the bilateral factor could not be used. The bilateral factor is used in connection with the combined evaluation rating, and would not be considered "independently ratable".

The BVA has ruled for SMC using addition, as oppose to combined evaluation rating, and also used combined evaluation rating..... I believe the BVA has not been directly challenged on this law/regulation.

I am presently waiting for claims to be rated (in rating since Dec), then I will be challenging the interpretation of the law. I should have been house-bound since 1993, and additional 60% (50% for half step), since 1997, not including my present claims. I believe PR already has his claim in, challenging the interpretation.

#14 Philip Rogers

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Posted 29 May 2011 - 10:50 AM

WAC-Vet75 - Mine was recently denied and has just been received, again, at the BVA, as part of a previous remand, where it's, according to the BVA's recent letter, being treated in a expeditious manner because it's been previously remanded. As I recall, I have two 100% ratings (PTSD 100% + PTSD w/alcoholism 100%), plus a 20% for DMII, two 10%'s for PN in legs w/bilateral factor, 10% for hypertension and 10% for tinnitus. We'll see what happens. This week, I'll send an additional statement explaining to the BVA where I feel the RO screwed up and waive any additional review of evidence by the RO. My current claim is twofold: The first is an appeal of a housebound claim from 1989 w/the "s" claim being an inferred issue and the second is them adding my new CUE claim for an "s" award, based on the 100% + 60% ratings. The RO has combined them which, in itself, is an error. Again, we'll see what happens? I will go to the CAVC w/it, if necessary. It's already been to the CAVC, where, if you recall, my atty won a remand on the 1989 housebound issue. They keep denying it because I'm able to attend my VA appointments and the C&P doctors won't speculate as to whether my SC disability(PTSD) interfered w/my ability to leave the house, to go to work. (which the CAVC requested in the remand)

pr



Just to note..... If, ratings in excess of 100%, are to be added, as I and other believe to be so, and not combined, I would venture to say that the bilateral factor could not be used. The bilateral factor is used in connection with the combined evaluation rating, and would not be considered "independently ratable".

The BVA has ruled for SMC using addition, as oppose to combined evaluation rating, and also used combined evaluation rating..... I believe the BVA has not been directly challenged on this law/regulation.

I am presently waiting for claims to be rated (in rating since Dec), then I will be challenging the interpretation of the law. I should have been house-bound since 1993, and additional 60% (50% for half step), since 1997, not including my present claims. I believe PR already has his claim in, challenging the interpretation.


Edited by Philip Rogers, 29 May 2011 - 10:56 AM.


#15 jbasser

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Posted 29 May 2011 - 11:17 AM

I haven't verified jbasser's figures but I'm sure he's correct, however, I do feel, he may have failed to mention that you should ask for that SMC "s" award, retro to the date at which time the last award was that brought it to the 60% level, because, I believe, the VA is supposed to proactively award that "s" award, meaning the veteran doesn't need to apply for it, the VA is required to award it w/o the vet asking. It is assumed the veteran doesn't know about it. Anyone, please correct me, if I'm wrong? Thanks!

pr


Your Correct PR. The VA should look at the effective date. The date you are entitled to is the date.

Basser

#16 john999

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Posted 29 May 2011 - 11:21 AM

The "S" award should be retro to the date you first met the total plus 60%. I claimed "S" in 2010 and got it retro to 2008 when I went to TDIU+ 60%. I know there is a question about if I had been total+ 60% in 2005 would I have got retro to 2005? I think I should since no new law was written only reinterpretation of old law. If VA is going to say that any vet who can make it to appointments is not HB then someone should sue them for not providing complete home care for every single one of those vets. If we are housebound the VA should be sending doctors and portable MRI and CT machine to our houses if this is the standard they set. I should have a nurse living with us to help me onto the toilet.

#17 WAC-Vet75

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Posted 29 May 2011 - 12:13 PM

PR, I will also be going for an inferred claim for my s, back to 93. Wish I would have known more about such things then, as I would have NOD'd right away. It's fortunate, for our younger comrades, that we have gone through all of this, as we should be a help to them getting what we had to fight so hard for!

I am most curious as to the VA's reasoning for trying to combine ratings after the 100%.

Here is a very interesting read http://www.va.gov/op..._Lit_Review.pdf page 55 states, "The legislative history for this law does not explicitly state a rationale for the extra awards. Although one might infer that the extra awards are to compensate for loss in quality of life, without a clear statement of Congress' intent, this is speculation." It is clear that Congress specifically stated, "independently ratable", as oppose to "combined evaluation rating of..."!

Basic disability ratings are rated from 0%-100%, and are subject to the combined rating evaluation, as the pdf explains. Under the VA's present system, unless you have one, single, disability rated at 100%, the highest rating a Veteran can receive is 100%, no matter how many disabilities, or percentages given. Even with TDIU, the VA continues to combine all the ratings. As an example, a Vet with 40% PTSD, 40% hearing loss, 40% left knee, 40% right knee (bilateral factor added), 40% right hand, 40% left hand (bilateral factor added), 40% DDD, would still only be 100% combined! The highest disability rating a Veteran can be awarded is 100%. SMC is SPECIAL MONTHLY COMPENSATION, not basic compensation, and should not fall under the same combined evaluation rating as basic compensation.

PR, I don't know if I asked this question before, but when you talk to the VA, do they state your percentage as 100%, 200%, or a combined rating of 100%? I wonder how they state the percentage of those with SMC......

Edited by WAC-Vet75, 29 May 2011 - 12:17 PM.


#18 john999

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Posted 29 May 2011 - 12:28 PM

I would like to see where VA has inferred a potential right to SMC "S" for any 100% mentally disabled vet. Do they discuss in anyone's claim here that they considered "S" for 100% vet?

#19 Philip Rogers

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Posted 29 May 2011 - 12:31 PM

WAC-Vet75 - I've never discussed my ratings w/them and, in fact, only found out about 6 months ago, I had all those ratings, when my attorney sent me a copy of the decision he'd received, which included the "blue sheet." I had always had ratings of 100%, 20% & 10% and found out on the "blue sheet" that I now had ratings of 100%, 100%, 20%, 10%, 10%, 10% & 10%, which was attached to an ED "k" award, retroactive 10yrs. They never notified me of my PN award, nor my hypertension award. The PN award was August 2010 and the hypertension award was 2002, I think. When I saw I had the added 60%, I immediately notified them that they failed to award the SMC "s" award, which they denied, quoting the combined ratings table, and sent the claim back to the BVA.

pr

#20 WAC-Vet75

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Posted 29 May 2011 - 01:59 PM

I would like to see where VA has inferred a potential right to SMC "S" for any 100% mentally disabled vet. Do they discuss in anyone's claim here that they considered "S" for 100% vet?

They didn't infer a potential to SMC for 100%TDIUs..... I am sure there are many who meet the requirement, yet aren't receiving SMC(s)! I have known many 100% mentally disabled Vets that ARE housebound... but never even heard of SMC.

#21 john999

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Posted 29 May 2011 - 04:35 PM

WAC

I never heard of TDIU until I posted on Hadit. No VSO or the VA ever discussed any of this with me and I have been SC for 40 years. Never have I heard a VA employee utter the word SMC. I think they are told to never volunteer any information a vet might use to get compensation. Big secret.

#22 sgmdae

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Posted 29 May 2011 - 04:45 PM

Thank you for all the comments,
I was told that the bilateral for my ankles would be combined in the rating forSMC (s)
So, if that not true, maybe that the reason they didn't award it
95% of all posts say that I'm elgible, hope there right
I'm told its in the Development stage,
that doesn't make sense, what do they have to develop,
all the rating are in my system
it seems to me, they should says opps, we missed this, lets award this and retro back to the effective date
what are they developing????

#23 WAC-Vet75

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Posted 29 May 2011 - 05:08 PM

I was told that the bilateral for my ankles would be combined in the rating forSMC (s)
So, if that not true, maybe that the reason they didn't award it
95% of all posts say that I'm elgible, hope there right
I'm told its in the Development stage,
that doesn't make sense, what do they have to develop,
all the rating are in my system
it seems to me, they should says opps, we missed this, lets award this and retro back to the effective date
what are they developing????

If, the VA added up, as oppose to using the combined rating evaluation, then they would not use the bilateral factor. Since they are apparently using the combined rating evaluation, they have to use the bilateral factor.

What are they developing? Veteran FRUSTRATION, of course!

#24 WAC-Vet75

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Posted 29 May 2011 - 05:33 PM

WAC

I never heard of TDIU until I posted on Hadit. No VSO or the VA ever discussed any of this with me and I have been SC for 40 years. Never have I heard a VA employee utter the word SMC. I think they are told to never volunteer any information a vet might use to get compensation. Big secret.

I've yet to hear a VSO or VA employee tell me about SMC either.... I learned about A&A when I was searching the internet seeing if there was any help I could get, due to my limitations from s-c disabilities. I've paid, out of pocket, for caregivers, since 2008. Couldn't afford trained ones, so I hired people that I knew to help me. During my search, I ran across military.com (I believe), and read about A&A. Since then, I started really reading over the laws/regulations, and all the BVA and CAVC cases I could find.

I was shocked to find out that the VA was using the combined evaluation rating, for ratings over 100%. I remember reading (decades ago) that a Veteran could not be paid in excess of 100%. With the language of 3.350, and knowing the highest disability rating a Veteran can get is 100%, you can imagine the shock finding out that they actually were combining the ratings for Special Monthly Compensation! So, you are paid for being 100%, then the SMC is the way of compensating a Veteran for additional injuries/diseases/conditions that causes a loss of quality of life, since you can not be more than 100% disabled, according to the basic rating schedule.

For SMC (L) the rate is $654.00, regardless of marriage, or number of dependents, whereas marriage, and number of dependents does matter for your basic rating! So, once you reach 100%, you are paid at the highest basic rate allowable by law. Why should they continue to combine the rating, other than to cheat Veterans out of SMC, that Congress intended them to have!

#25 Philip Rogers

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Posted 29 May 2011 - 05:41 PM

john - In 1999, when the BVA awarded my 100% schedular, for PTSD, retro to 1989, they stated that HB and/or A&A were an inferred issue and then denied me, quoting the regulation in the reason and bases, for my denial, stating that I did not meet the requirements. I've seen many vets who weren't advised of the inferred issue and some who were. Since my award was in 1999, my inferred issue has been under appeal, since then, and continues to be denied.

pr



I would like to see where VA has inferred a potential right to SMC "S" for any 100% mentally disabled vet. Do they discuss in anyone's claim here that they considered "S" for 100% vet?



#26 john999

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Posted 29 May 2011 - 06:22 PM

Sqmdae

There is nothing to develop in your SMC claim. You are either entitled to it or not. I think the VA is trying to BS you around on this. I got mine back in a month. I just quoted Bradley V Peake and pointed out my ratings and dates. They called it a CUE since I should have got it in 2008. If I had not claimed it (which I am not supposed to have to do) I never would have gotten it.

Phil

When you finally get the inferred S that will pay for your travel trailor and trips to Florida.

WAC

The VA are pros at cheating vets on these things especially effective dates.

#27 Philip Rogers

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Posted 29 May 2011 - 06:47 PM

Thanks, John, it will!!!! I think my RO likes to mess w/me cuz they know I'm right. I just need to live long enough!

pr



Sqmdae

There is nothing to develop in your SMC claim. You are either entitled to it or not. I think the VA is trying to BS you around on this. I got mine back in a month. I just quoted Bradley V Peake and pointed out my ratings and dates. They called it a CUE since I should have got it in 2008. If I had not claimed it (which I am not supposed to have to do) I never would have gotten it.

Phil

When you finally get the inferred S that will pay for your travel trailor and trips to Florida.

WAC

The VA are pros at cheating vets on these things especially effective dates.



#28 Philip Rogers

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Posted 30 May 2011 - 08:44 AM

I've just finished reviewing the VBM writings, on SMC, looking for additional ways to approach my "s" claim, for the 100+60 aspect, and see that they also use the combined ratings statement in their advice. I would have thought, by now, someone would have corrected this, but alas, they have not. Once I settle in, and can wait for their return call, I'll try again to contact the NVLSP for a better interpretation.

pr

#29 Commander Bob

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Posted 30 May 2011 - 12:04 PM

DEPARTMENT OF VETERANS AFFAIRS
Veterans Benefits Administration
Washington, D.C. 20420

July 22, 2009

Director (00/21)
All VA Regional Offices and CentersIn Reply Refer To: 211B
Fast Letter 09-33 SUBJ: Special Monthly Compensation at the Statutory Housebound Rate

This letter provides guidance for adjudicating claims involving entitlement to special monthly compensation (SMC) at the housebound rate based on a decision by the U.S. Court of Appeals for Veterans Claims (CAVC or Court) in Bradley v Peake.

Background

38 U.S.C. § 1114(s) provides that SMC at the (s) rate will be granted if a veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of a service-connected disability or disabilities. VA’s implementing regulation at 38 C.F.R. § 3.350(i) essentially mirrors the statutory language.

Prior to the CAVC’s decision in Bradley v. Peake, VA excluded a rating of total disability based on individual unemployability (TDIU) as a basis for a grant of SMC at the (s) rate. VA relied upon language in citing VAOPGCPREC 6-99, dated June 7, 1999, in which the General Counsel stated that a TDIU rating takes into account all of a veteran’s service-connected disabilities and that considering a TDIU rating and a schedular rating in determining eligibility for SMC would conflict with the requirement for “additional” disability of 60 percent or more by counting the same disability twice.

On November 26, 2008, the Court, in Bradley v. Peake, disagreed with VA’s interpretation and held that the provisions of section 1114(s) do not limit a “service-connected disability rated as total” to only a schedular 100 percent rating. The Court found the opinion too expansive because it was possible that there would be no duplicate counting of disabilities if a veteran was awarded TDIU based on a single disability and thereafter received disability ratings for other conditions.

The Court’s holding allows a TDIU rating to serve as the “total” service-connected disability, if the TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to SMC at the (s) rate.

The Court held that the requirement for a single “service-connected disability rated as total” cannot be satisfied by a combination of disabilities. Multiple service-connected disabilities that combine to 70 percent or more and establish entitlement to TDIU under 38 C.F.R. § 4.16(a) cannot be treated as a single “service-connected disability rated as total” for purposes of entitlement to SMC at the (s) rate.

New Evidentiary Standard

Based on the Court’s decision in Bradley, entitlement to SMC at the (s) rate will now be granted for TDIU recipients if the TDIU evaluation was, or can be, predicated upon a single disability and (1) there exists additional disability or disabilities independently ratable at 60 percent or more, or (2) the veteran is permanently housebound by reason of a service-connected disability or disabilities.

For example, a veteran in receipt of TDIU based on a 70 percent evaluation for post- traumatic stress disorder (PTSD) and other service-connected disabilities consisting of a below-the-knee amputation, rated 40 percent disabling; tinnitus, rated 10 percent disabling; and diabetes mellitus, rated 20 percent disabling, would be entitled to SMC at the (s) rate if it is determined that PTSD is the sole cause of the unemployability, as the other disabilities have a combined evaluation of 60 percent.

It is important that, for purposes of section 1114(s)(1), no disability is considered twice to ensure that the prohibition against pyramiding contained in 38 C.F.R. § 4.14 is not violated when determining which disability results in TDIU entitlement and in determining which disability or disabilities satisfy the independent 60 percent evaluation to award SMC at the (s) rate.

However, for purposes of section 1114(s)(2), a disability may be considered in determining TDIU entitlement as well as in determining whether a veteran is permanently housebound as a result of service-connected disability or disabilities because that provision does not specify “additional service-connected disability or disabilities” as in section 1114(s)(1).

Accordingly, a determination for entitlement to SMC at the (s) rate must be made in all TDIU cases where potential entitlement to SMC (s) is reasonably raised by the evidence.

Current Status

Regulations and M21-1MR, IV.ii.2.H.46.a will be revised to comply with the Court’s decision. In the interim, the Court’s holding will be applied to all pending and future claims.

In applying the Court’s holding, if the medical evidence is insufficient to render an adjudicative determination as to whether the veteran’s TDIU entitlement solely originates from a single service-connected disability, and there is potential entitlement to SMC at the (s) rate, the veteran should be scheduled for a VA examination to include an opinion as to the cause of unemployability.

Questions

Questions concerning this fast letter and other issues related to this issue should be submitted to the VAVBAWAS/CO/21FL mailbox.

Bradley G. Mayes
Director
Compensation & Pension Service


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OH, thank you Carlie, for this most valuable information.

cb

#30 Commander Bob

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Posted 30 May 2011 - 12:06 PM

Sqmdae

There is nothing to develop in your SMC claim. You are either entitled to it or not. I think the VA is trying to BS you around on this. I got mine back in a month. I just quoted Bradley V Peake and pointed out my ratings and dates. They called it a CUE since I should have got it in 2008. If I had not claimed it (which I am not supposed to have to do) I never would have gotten it.

Phil

When you finally get the inferred S that will pay for your travel trailor and trips to Florida.

WAC

The VA are pros at cheating vets on these things especially effective dates.



Thanks John, I hear you...

Bob

#31 WAC-Vet75

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Posted 30 May 2011 - 04:41 PM

"Accordingly, a determination for entitlement to SMC at the (s) rate must be made in all TDIU cases where potential entitlement to SMC (s) is reasonably raised by the evidence." This is most interesting..... now, the questions are, would it be retro to the date the TDIU was granted, but should have been SMC(s-2)? Should the Veteran be penalized because the VA did not interpret the law/regulation correctly? Is the VA notifying previous TDIU Veterans of the possibility of being eligible for SMC?

#32 WAC-Vet75

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Posted 30 May 2011 - 04:58 PM

I've just finished reviewing the VBM writings, on SMC, looking for additional ways to approach my "s" claim, for the 100+60 aspect, and see that they also use the combined ratings statement in their advice. I would have thought, by now, someone would have corrected this, but alas, they have not. Once I settle in, and can wait for their return call, I'll try again to contact the NVLSP for a better interpretation.

pr

I sent NVLSP my statement concerning the VA's use of combined evaluation rating concerning SMC. As soon as I get a response, I'll let you know. I did ask that they give me what argument against my contentions, less the "VA always did it that way", they could. I did some "tweeking" to it and can't seem to find any argument against it, so I'm hoping if there are, someone at NVLSP will find it.

#33 USNDW

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Posted 30 May 2011 - 09:38 PM

Citation Nr: 1105608

Decision Date: 02/10/11 Archive Date: 02/18/11

DOCKET NO. 07-14 752

During the pendency of the Veteran's appeal, a100 percent schedular rating was assigned for his service-connected anxietyreaction with depressive features, effective December 4, 2009. Nevertheless, TDIU is for considerationthroughout the entire period regardless of the total schedular rating. In Bradley v. Peake, 22 Vet. App. 280, 294(2008), the United States Court of Appeals for Veterans Claims("Court") determined that a separate TDIU rating predicated on onedisability (although perhaps not ratable at the schedular 100 percent level)when considered together with another disability separately rated at 60 percentor more could warrant special monthly compensation under 38 U.S.C.A. §1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain orobtain the TDIU rating, even where a 100 percent schedular rating has also beengranted. Because of this holding, VA'sGeneral Counsel has taken action to withdraw VA O.G.C. Prec. Op. No. 6-99,which is contrary to the holding of Bradley.

Citation Nr: 1107737

Decision Date: 02/25/11 Archive Date: 03/09/11

DOCKET NO. 06-12 775

The Board acknowledges thejudicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court ofAppeals for Veterans Claims (Court) held that a request for a TDIU, whetherexpressly raised by the Veteran or

reasonably raised by the record,is not a separate 'claim' for benefits, but rather, can be part of a claim forincreased compensation. In other words,if the claimant or the evidence of record reasonably raises the question ofwhether the Veteran is unemployable due to a disability for which an increasedrating is sought, then part and parcel with the increased rating claim is theissue whether a TDIU is warranted as aresult of that

disability. In the present case,the record reasonably raises a claim of entitlement to a TDIU.

The Board notes that although theissue of entitlement to a TDIU has not been certified on appeal, the Board doeshave jurisdiction to decide the claim. According to VA's General Counsel, the question of entitlement to a TDIUmay be considered as a component of an appealed increased rating claim if theTDIU claim is based solely upon the disability or disabilities that are thesubject of the increased rating claim. See VAOGCPREC 6-96. See also 38 U.S.C.A. § 7104© (West 2002); 38C.F.R. §

14.507 (2010) (VA General CounselOpinions are binding on the Board). Inthe present case, there is evidence that the Veteran's service-connecteddisabilities render him unemployable.




Pretty recent decisionS by BVA. There are more almost exactly like these. Point is the VARO may not tell a Veteran TDIU is moot if they reach the 100% schedule rating because if the Veteran has any one rating that might, may, could, maybe, however you want to word it, that could possibly grant the Veteran TDIU (60%) then the Veterans claim should be reviewed to see if the single rating at 60% or higher could grant TDIU.


#34 Berta

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Posted 31 May 2011 - 06:16 AM

"I believe, the VA is supposed to proactively award that "s" award, meaning the veteran doesn't need to apply for it, the VA is required to award it w/o the vet asking. It is assumed the veteran doesn't know about it. Anyone, please correct me, if I'm wrong? Thanks!"


I totally agree Philip-
whenever the medical evidence clearly warrants SMC consideration for S or anything else-they are supposed to award SMC.They might award the wrong level of SMC but at least at that point the veteran has a decision they can appeal.

If they should consider the SMC (by medical evidence they have) and don't even consider it enough to deny it, they have f---ed the veteran.

Most Appeals are over what they did wrong- not what they didn't do.

If they ignore the SMC issue and dont even consider it -even to deny it- then they have comitted a CUE.

I need to stress here- the medical evidence must be in VA's possession and on it's face would warrant SMC consideration.

The VA told me that my husband ( over 300 % SC) didn't "ask" for SMC so that is why they didnt consider it.

I asked them to produce the specific regulation in 38 USC that says 1114,38 USC applies, as written, to all disabled American veterans except Rodney F Simmons.

This is bull sh-t

SMC as I stated here before many times -with citations- is a Statutory and MANDATED inferred issue whenever the medical evidence warrants it.
That is established VA case law 101.

Even though they made a CUE on his IHD and CVA rating-the CVA rating alone -although wrong (80% but should have been 100%)would have warranted at least an SMC "S" Award.

I am glad you are asking NVLSP to clarify the question on combined ,bilateral etc.

I am completely confused by all that at this point.

But I have never been confused as to the statutory mandate of SMC.

In my opinion the VA snookers veterans by manipulating the SMC regs and I bet they are trying to snooker them under the AO regs as well as the new regs definitely ,in some cases,should warrant a proper SMC award.

I hold myself responsible for what led up to my SMC CUE claim because I believed what a vet rep told me in 1998 and he was wrong.That was my fault - I let it go- thinking he knew better then me.

When I re opened for direct SC death,then I realized they had snookered me and so I filed the CUE claims.

The 1998 1151 award clearly states their admission of causing additional disabilities (CVA 100% and IHD 100%)and the veterans death- totally up along with his 100% P & T PTSD award to 300% (not including some other issues they never rated )

Even an overlooked "K" award should definitely be appealed by a veteran.

SMC costs the VA big bucks.

So in my opinion, it is as likely as not that VA will try to get out of making proper SMC awards whenever they can and probably have done that to thousands of veterans in the past.

Many of our well paid vet reps are only to happy to see that you have gotten an award and reluctant to pursue it further in many cases-if the award is wrong- even though they know (sometimes they know) it should be appealed.


















Besides it took them over 3 years after his death and 6 years after he filed his 1151 claim for them to adjudicate the claims I re opened in his behalf so how could he ask for SMC years after the VA put him on ice?

Edited by Berta, 31 May 2011 - 06:20 AM.


#35 Pete53

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Posted 31 May 2011 - 10:11 AM

I had to ask for it. In fact I believe that you have to ask for just about everything from the VA. That is why years after I was 100% Hadit and John999 helped me bet SMC-S

#36 WAC-Vet75

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Posted 15 June 2011 - 10:53 AM

PR, did you ever get a call back from NVLSP? I sent them an email, applicable regs with responses, but have not heard a thing from them so far.

#37 john999

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Posted 15 June 2011 - 04:28 PM

Pete

I think both you and Phil are owed retro on "S" since it should have been inferred when you got 100%. I would not give up on that. If there is nothing in your records that say they considered it and rejected it then you know they did not even think about it. 10+ years of S retro would be some big dollars.

#38 WAC-Vet75

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Posted 15 June 2011 - 07:59 PM

Pete

I think both you and Phil are owed retro on "S" since it should have been inferred when you got 100%. I would not give up on that. If there is nothing in your records that say they considered it and rejected it then you know they did not even think about it. 10+ years of S retro would be some big dollars.

They never considered SMC s when I got my 100% (TDIU, one disability), back in 1993..... I directly "inferred" housebound in the letter submitted to the VARO, the letter which I was told was what actually got me rated TDIU. Oh wait, I was able to make VA appointments, even though I had to have someone go with me, as I couldn't leave my house alone. Hell, I even wrote how I would hide when someone came to my door! Nope, SMC was never even mentioned........

Well, my A&A and Lupus claims are now in notification, as of this afternoon. Once I learn the outcome, I will be able to file for SMC using my statement against them using combined ratings! I tried calling the 800# to see if I could glean any information, but I guess it was just too soon. I did learn that something went on June 7th, I just don't know what, but it has to be reviewed now. Either way, I will be submitting my statement for SMC, using addition, not combined evaluation rating.

The fight begins again!!!.

#39 Sidney56

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Posted 16 June 2011 - 05:40 AM

Hey guys....I don't know if this pertains to me or not, since it
is hard for me to wrap my brain around a lot of legal jargon at
the moment. I have filed form 21-2680 completed by my VA Psy requesting
A&A. Now you guys got me wondering if I qualify for Housebound.

Here is the statement from my award letter:

We determined that the following service connected condition(s) has/have
worsened, so we granted an increase in your assigned percentage:

Old % Assigned = 10%....New % Assigned= 70%......Effective Date= Aug 30,2005
Old % Assigned = 70%....New % Assigned= 100%.....Effective Date= Aug 26,2010

Entitlement to individual unemployability is granted effective August 30,2005.

Basic eligibility to Dependents' Educational Assistance is established from August 30,2005.

A finding of incompetency is proposed.

No examination will be scheduled in the future for your permanent and total disability/disabilities.
This is a grant of benefits sought on your appeal. Therefore, your appeal is considered satisfied and
has been closed.

The overall or combined evaluation is 70% effective August 30, 2005, however, you will be paid at
the 100% rate based on your entitlement to individual unemployability, it becomes 100% effective
August 26, 2010. We do not add the individual percentages of each condition to determine your combined rating.
Instead, we use a combined tating table that considers the effect from the most serious to the least serious
condition.


Am I eligible for SMC, or am I interpreting you guys statements wrong?
My VSO is of no help. He thinks that I should be "grateful for what I got
and don't open a can of worms with the VA". What bulls***!

Edited by Sidney56, 16 June 2011 - 05:43 AM.


#40 john999

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Posted 16 June 2011 - 07:59 AM

You need to be actually housebound or have total plus 60% to get housebound.




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