The ‘Mystery’ Sources Of Special Monthly Compensation Law
One veteran’s wife contacted me recently about Special Monthly Compensation (SMC), and I’m embarrassed to say I did not have a great answer for her off the top of my head. When I bounced the situation off a couple other veterans lawyers, they were also unsure of the answer.
The problem with SMC’s is that the topic is convoluted and difficult to review. If you turn to the VA.gov, the website gives you a lot of “may be eligible” jargon without providing any links or insight to the actual regulations and laws affecting entitlement. This means you need to find the regs and statutes that govern the benefit stat before you get misled.
Since the holidays are usually a slow news week, I thought looking at SMC would be a useful topic today as the subject is a bit of a black hole for many advocates.
The purpose of this post is to point you in the right direction if you are confused about where to look for answers about SMC’s. And since I need to keep it short, the only purpose of the post is to point you in the right direction – not to serve as an SMC bible.
Here is a quick overview of the compensation involved.
Veterans with debilitating injuries may be entitled to additional payments well beyond the 100% point most focus on. Instead, some veterans may be entitled to payments as high as $8,599 per month. Outside of this, veterans who require aid and attendance of a family member may be eligible for payments of $1,690 in certain situations.
So what can you get rated for?
Luckily, we do not need to rely on VA as the sole source of information on SMC’s in some archaic pamphlet.
The CFR, specifically 38 CFR 3.350 – Special monthly compensation ratings, provides a full run down of the commonly received SMC ratings. This regulation merely interprets 38 USC § 1114 – Rates of wartime disability compensation that was provided us by Congress.
And, last but not least, here is the break down of SMC rate table for payments by classification published by VA yearly.
Here is how these resources work:
– 38 USC § 1114 provides the full breakdown by subsection (a) to (t). Subsections (k) to (t) provide insight into how ratings for SMC work.
– 38 CFR § 3.350 provides deeper explanations of each subsection (k) to (t)
– VA’s SMC Rate Table provides rates for each subsection from (k) to (t)
Veteran advocate Joe Wright provided a good summary of SMC a couple days ago:
Disabilities VA can consider for SMC include loss or loss of use of a hand or foot, immobility of a joint or paralysis, loss of sight of an eye, loss or loss of use of a reproductive organ, deafness of both ears (having absence of air and bone conduction), the inability to communicate by speech, and other disabilities. The VA will pay higher rates for combinations of these disabilities such as loss or loss of use of the feet, legs, hands, and arms, in specific monetary increments, based on the particular combination of the disabilities. There are also higher payments for various combinations of severe deafness with bilateral blindness.
Additional SMC is available if a veteran is service-connected for paraplegia, with complete loss of bowel and bladder control. If a veteran is service-connected at the 100 percent rate and is housebound, bedridden, or is so helpless as to need the aid and attendance of another person, then payment of additional SMC can be considered. The amount of SMC will vary depending on the level of disability.
Pay special attention to the second paragraph’s clause, “or is so helpless as to need the aid and attendance of another person…” My hunch is many veterans’ families are struggling with VA to gain approval for aid and attendance (AA) when the disability rating is below 100%. I plan to follow up more on this topic as time allows.
Until next time, please comment below if you have experience with AA – good or bad.
Hey Ben I am at 100% permanent and total I have been getting it for about 40 years I also have back problems knee injury hand problems I received k and L I have 10% on my knee 10% on my hand 40% on my back and I had 100% on my nerve can I get aid and attendance my wife is my caregiver my check comes in her name
My husband is covered 100%, but with a non-service connected injury. He suffered a spinal cord stroke and is a paraplegic. The VA in California, where we were living at the time, certified me for bowel and bladder care, but did not inform me of the fee-based program. We moved back home to Alabama shortly after his stroke to be near family. It was not until his 2nd yearly SCI evaluation that we were told about the fee-based program. They connected us with the local VA and I was certified and admitted into the program. The care provided for the first 2 years was not paid. I questioned the SCI coordinator about it and she said that they don’t pay retroactively. However, I read somewhere that retroactive payments can be made. Have you heard of this and if so, how could I go about it
Dear Ben:I would like to speak with you on this issue of SMC. I have a few medical problems and the VA granted me SMC but without a letter( ) once in 2014 Entitlement to special monthly compensation based on Housebound, Aug 28 2014.Entitlement to special monthly compensation is warranted in this case because criteria regarding Housebound have been met. Again in 2015 Apr 6, Entitlement to SMC is warranted in this case because criteria regarding Loss of Use of a creative organ were met.
The most under awarded SMC is S under the housebound clause. I speak of it as a 100% stand alone without the qualifier/kicker of the extra 60%. Read Howell v. Nicholson here and you will get a whole new appreciation for how VA utilizes it against you. https://asknod.wordpress.com/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/
SMC is due and payable the moment you qualify for it. Technically, you should never have to apply. If you were entitled to it after getting on the wrong side of a Bouncing Betty in 68 and VA “missed” it, you are entitled to retro. Few can even comprehend this. Supporting medrecs will be necessary and little else. I suggest a good VA rainmaker because VA will not go willingly down that road without a tussle.
I’m filing today for what will hopefully be CAVC #15-0001. We carefully prepositioned it with 30 day letters and suitable belts and suspenders. I have IRIS commos going back to 2012 begging VA to finish this and award me S back to 94 for Porphyria Cutanea Tarda due to 22 years of monthly phlebotomies (like dialysis). It will be a lot like Gene Groves’ recent Writ but a longer timeline.
VA is fond of using the old saw “Well, hell, boy, you made it down here for your C&P under your own steam. How in Sam Hill can we give you S? You ain’t housebound!”. Howell precedence puts that puppy to bed. A lot more of you are entitled to S under Housebound than you can even imagine. The A&A hurtle is certainly higher and VA will try to treat any application for SMC under that microscope. Look at a VA 21-2560 HB/A&A application and read between the lines. I filed after coming home from the VAMC in 2010 sporting a brand new colostomy bag and a five-banger PICC for home IVs.. VA’s take? Shucks, buddy. You’re not confined to the immediate premises of your home. Porphyria causes photosensitivity so slather some more SPF 3000 on and try to stay in the shade. You’ll be fine, hear? The IV? Well shoot. That’s why they put wheels on them IV stands to make them portable.
If you are not prepared to throw down with these chuckleheads, or worse, kowtow to the DAV NSO gatekeepers, you will never get there. VA hands out Ks and 10% tinnitus ratings like Mardi Gras beads in hopes you’ll go away. Hell, most NSOs don’t even know you can have 3 Ks at once.
SMC is one of the least explored, let alone understood entitlements, and one even VA is fuzzy on. I had a VA rater convince me to drop two extra claims in 2008 because I was now 100% schedular and there “simply is no more money on the table”. Always remember this is like military justice-you’re guilty until proven innocent. At the VA. they work backwards toward a grant from the presumption you are not entitled to it. Think of VA like GEICO. If they can get away with an Earl Scheib $99.95 repair/paint job on the left front quarter panel, they sure as hell aren’t going to replace it.
And as for VSOs, look at DAV’s charter language. They are beholden to the VA first and you second. It’s right there in black and white and they didn’t even use fine print to hide it. Keep digging Ben. SMC is a Veteran’s best friend and there for the taking—if only they knew.
Couldn’t agree more Asknod. Same for VFW, which first said I couldn’t file a claim, then held my claim 18 months under the Ribaudo stay of Haas. I broke up that fiasco with a phone call to Ethan Kallet, Esq., staff attorney for the VA on Haas, when he agreed with me and said the stay did not apply.
The VFW declined my membership request in March 1973 in Lancaster California. They said Vietnam wasn’t a “war” therefore I didn’t qualify. DAV didn’t tell me about the COVA in 1992 when they lost at the BVA. AmVets, well- they get a pass in 94. VA dropped the ball and paid for it. MOPH said to take the tinnitus for 10% from 1994, shut up and go home in 2008. Sometimes a man has to pack his own parachute… or, get a take-no-prisoners law dog.
Thailand/RVN/ Laos May 70- May 72
Correction: VA Form 21-2680 Exam for Housebound or Permanent Need for Regular Aid and Attendance. Note the two words “Permanent” and “Regular” and their placement legally. It’s the perfect pre-denial form.
Email me at [email protected] and send me your phone number and best time to call I get SMC and it was due to a lawsuit for medication they gave me at the Va which hd side affects and never told me The same thing is happening with us veterans taking fanasteride and its why we need your help in suing the VA for finasteride while others are suing big time the drug manufacturers We are being told there are no side effec ts nor is it dangerous a lie by VA urologists Need your help ASAP for class action This is how one gets SMC via VA negligence and medical malpractice Lets talk
Lee Horowitz M.Ed, CAGS
I had the idea you had something to say about Agent Orange and it relationship to strokes. I had USAA not pay the credit card charge because I couldn’t see any help.
Question: Do you know a John Mulhern? John was from Chicago, IL and was a medic with 2nd platoon, A Company, 502 Bn, 101 abn div. 1970 – 1971????
There is a strong medical association between strokes and heart disease (AO IHD) as well as diabetes mellitus.(AO DMII).
However the VA will need a strong independent medical opinion with a full medical rationale ,in order to overcome any denial a vet would get for claiming a stroke due to Agent Orange,without any contributing established SC for AO IHD or DMII.
if you have had any transcient ischemic attacks prior to having a full blown stroke ( as in my husband’s case) then AO diabetes might well be the cause of the stroke.
All strokes have a cause and ,in my opinion, since I won under FTCA malpractice for my husband’s death, AO IHD death, with AO DMII contributing, and multiple transcient ischemias, and major CVA(ALL misdiagnosed by VA except for his 100% P & T PTSD)
VA cant or often could but won’t connect the medical dots in cases ,like I assume you have, and these claims need a strong independent medical opinion from a real doctor, with expertise in Neurology and/or Cardiology.
VA said (under FTCA) that my husband;s meds were improper and they lent to his major stroke.
Under my Nehmer award they awarded 100% P & T under 1151 for the stroke.for 6 months retro.
They still own me 16 more months retro and that claim is pending.
Mrs. Simmons, I received a head wound from a grenade in Vietnam while serving with the 1st Bde 1/327 Abn Inf 101st Abn Div as a Combat Medic May 14th, 1967. I was retired from the United States Army for those wounds received over 47 year’s ago! The VA said in a letter that there is “no evidence of me ever having a TBI!” Your “connect the dot’s” statement is so true! I believe that every denial is a BONUS paid to some VA personnel. Veterans die at what the VA Health Care does to them and you have said it well. I am so sorry for your loss and I pray that all your outstanding claims get resolved…I prayed for mine but, that prayer was only partially answered…being the VA didn’t kill me…Stay strong!
Probably the most common is ED usually based on DM II (loss of small blood vessels and nerves) or other condition which may have an effect on performance.
SMC is complex. I recall having to review sections of it throughout my years as a DAV NSO. Learning about it took a signicant amount of the 16 month training period. Agree that SMC for psychiatric disorders is rare, and understandably so. I recall occasions when vets came into the office to claim A&A due to psychiatric reasons. Their ability to drive themselves downtown and come into the office was evidence they probably didn’t qualify for A&A. One vet insisted on filing the claim and came dangerously close to having his 100% reduced.
Eric, by example: just because a young male vet, or more for 100% or more service connected ptsd, tbi, and other psych injuries, can drive himself from Chicago to Mexico. It is a question of what happens to society and him along the way. You should not be here if you are a VA hack negative inputer. You seem like you are. If you really think driving has shi# to do with A&A and&A you needed 16 months to figure out AA regs, there is a job waiting for you at the IRS. You can screw over everyone there, not just vets. Shitloads of SSDI disabled who paid into and later received similar SMC like the VA, they drive, but usually need someone with them to keep them and society safe. Your comment is a perfect example of VA looking for bogus reasons to shaft a vet who really needs the help he earned. If you don’t like the rules and regs you can lobby to change them. The VA has shafted vets so much including on AA/SMC and every other benefit they may qualify for that we are still going through the huge scandal that got the Secretary canned, plus a big raft full of his cronies and more still being culled. We see your point but you are preaching false doctrine in the totally wrong place. I would hate to learn that yople u ever had anything to do with deciding if a vet got a wheelchair van, assistive technology, with the kind of saturation bombing example you chose for the possible purpose of reducing someone’s rating. The VA does, wrongfully, use threats and attempts and actual reductions to scare vets into not asking for what they really need. P.S. Besides the IRS there are also job openings at ISIS for traitors like you. You can chop heads off US military service members and vets too, all you have to do is apply and the kind of krap you chose to intimidate that very small percentage of vets who actually do qualify for AA for mental reasons. Sure, maybe you meant well, but it comes across as a threat. You are why a couple dozen vets or more commit suicide every day. Think before you sound off. If you worked for the DAV you are an absolute traitor. That kind of krap was not your mission. Billions and billions of dollars have been flushed down the toilet at the VA for every VA BS job benefit, bonus, and hidden incentive for screwing vets. Maybe you missed it. I think it was on TV and the whole world saw it, everyone but you though. DAV thinking like you is like a cop shooting a pedestrian for the hell of it. Truly amazing. Last but not least, maybe you can get a job reducing disability ratings for SC disabled vets who are also survivors of 9/11. Billions are still being paid out for that nightmare but you can save the nation tons of cash by making sure no survivors ever drive a fricking car if they can pull themselves together enough to do so. I am getting off this site for months now, maybe forever, so that should make you feel at least successful in a small way with your little anti-American mindgames.
Mr. Wallace, you are soooooo, right on with what you have written! Forty five year’s of none treatment for war related wounds, just talk from the entire VA Health Administration (VHA) system and talk from the lowest form and last in their class medical personnel! Thrown under the bus like the thousand’s of other veteran’s who served in the military! “Bob” McDonald could be the answer but that is a wait and see…I do not believe he will succeed in the change because almost everyone of those that work (I say the word work very loosely) at the VA in these United States should be fired and even put in prison for the crap that both women and men veterans have to put up with in dealing with the FUBAR VAH! CSPAN on the hearings exposing the fraud and scandal was both very enlightening and disturbing that our sacrifice isn’t worth a dime! Makes me wonder just who is going to get that next body bag? Again, Mr. Wallace thumb’s up for what you have written!
From reading actual VA regs, law and code, and from talking with other vets: a vet I know receives AA and his wife is his caregiver; he is 100% service-connected for PTSD; he receives an additional $2,410 per month of AA/Special Monthly Compensation. I do not recall the specific VA code right now, but it is in fact code as covered under “mental” reasons (see more below here). He appears as if he may also have other mental conditions, maybe major depression with psychotic features, from being driven insane by unimaginable hell in the Marines, as in the kind the Marines are known for. It should be noted in his case that his PTSD is a VERY extreme and severe form, and it is rather unusual for a vet to receive AA for PTSD. The VA and virtually all VA benefits experts almost always fail to understand that VA code specifically states that AA is payable for “physical or MENTAL reasons”. VA staff invariably tell vets that AA is only for physical reasons, but that is simply not true. Picture a vet who went through ridiculously high levels of months or years of duty trauma, he was also tortured in the line of duty for months or years, as a result he is catatonic but all of his physical attributes are otherwise healthy. Note that this is in contrast to the $1,690 amount cited in the example Ben stated above here as applied to a family member being your caregiver. But, Ben does say and/or imply that exceptions are made for special factors. Another veteran I know gets a total of $9,700 per month which includes the 100% service-connected rate; his wife and step-daughter both serve as his caregivers; he is paraplegic. A third vet whose case is in fact a form of case law” from being published by the VA Courts, is 100% service-connected for PTSD and schizophreneia. He recieves AA/SMC purely for mental reasons. He is a Nam vet and was clearly driven insane by the extreme Hell he went through in the service. All of these cases, physical or mental, receive AA/SMC because, as code allows for, they are “so helpless so as to need the aid or assistance of another person on a regular basis”. Remember, 100% for PTSD, and/or additional service-connected mental disability, are NOT usually granted AA/SMC; it takes very, VERY extreme “mental reasons” to be approved for AA/SMC. AA/SMC is much, much more often approved for “physical reasons”. I myself have recently been approved by VA physicians for AA/SMC for “mental reasons”, being 100% service-connected PTSD and additional mental reasons. I was subjected to many, many months of quite unique, ridiculously extreme traumas, and bizarrely high levels of stress, in the line of duty, in the Marines. I went before a special board of officers and others early during my tenure in the Marines. I was flat out told by the board that I had gotten my wish for this area of work in the service and I was being placed in a very unique program. They said a lot more than that. That is intentionally vague on my part and I will not say more than that. Except, it turned out to be Hell, far, far beyond anything you can imagine. There are many details but suffice it to say that there is no doubt that I do in fact require a caregiver on a regular if not constant basis. I am presently awaiting a determination on the amount of AA/SMC.
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