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M21-1, Part IV, Subpart ii, Chapter 2, Section I – History of Special Monthly Compensation (SMC)

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3
4
5
6
7
8
9
10
11
12

1.  General Information on the History of SMC


Introduction

This topic contains general information on the history of SMC, including


Change Date

May 12, 2015

IV.ii.2.I.1.a.  Purpose of This Section

This section has been designed for use by the rating activity when reviewing prior rating decisions for accuracy in the awarding of special monthly compensation (SMC).
Prior rating decisions addressing the issue of entitlement to SMC may appear to be erroneous based upon current criteria, when, in fact, they were totally correct based upon the criteria in effect at the time of the prior rating decision.

IV.ii.2.I.1.b.  Content of This Section

This section

  • contains only an overview of the history of SMC, not all of the historical aspects involving the payment of SMC
  • provides a breakdown for each of the levels of SMC, and
  • does not address the limited number of cases in which the criteria for SMC that were in effect before July 1, 1933, would be at issue.

Note:  Where appropriate, cross-references have been made to other levels of SMC where there are, or were, restrictions in the simultaneous payment of SMC at one or more levels.


IV.ii.2.I.1.c.  CO Assistance in Resolving Difficult SMC Cases

If there is any question as to which level of SMC is appropriate in a given case, submit the claims folder to Central Office (CO) (211B) for an advisory opinion.

IV.ii.2.I.1.d.  Overview of the History of SMC Changes From July 1, 1933, PL 73-2, to the Present

The table below describes the history of changes affecting the payment of SMC since the enactment of Public Law (PL) 73-2, on July 1, 1933, to the present.
Important:  Prior to July 1, 1933, SMC at various levels was payable under the provisions of the World War Veterans’ Act of 1924.
Legend:
  • The letters K through T indicate subsections of 38 U.S.C. 1114.
  • IA indicates the initial authority for the subsection.
  • A indicates that the subsection was amended.
  • D indicates that the subsection was deleted.
  • C-R indicates that the subsection was changed and the change involves restriction of payment.
Public Law
Effective Date
K
L
M
N
O
P
Q
R
S
T
PL 73-2
07/01/1933
IA
IA
IA
IA
IA
PL 79-182
10/01/1945
A
A
A
A
A
IA
PL 82-427
08/01/1952
A
IA
PL 84-969
10/01/1956
A
PL 85-652
09/01/1958
A
PL 85-782
10/01/1958
C-R
C-R
IA
PL 86-663
09/01/1960
C-R
IA
PL 88-20
07/011963
A
PL 88-22
07/01/1963
A
PL 89-311
12/01/1965
A
A
PL 90-77
10/01/1967
C-R
C-R
C-R
PL 90-493
08/19/1968
D
PL 95-479
10/01/1978
A
A
IA
PL 96-128
10/01/1979
A
PL 97-66
10/01/1981
A
A
A
A
A
PL 97-306
10/01/1982
A
A
PL 98-223
10/01/1983
A
A
PL 99-576
10/28/1986
D
PL 106-419
11/01/2000
A
PL 107-330
12/06/2002
A
PL 110-157
12/26/2007
A
PL 111-275
10/01/2011
A

2.  SMC Under 38 U.S.C. 1114(k)


Introduction

This topic contains information on SMC under 38 U.S.C. 1114(k), including information on SMC under


Change Date

December 13, 2005

IV.ii.2.I.2.a.  SMC Under PL 73-2

PL 73-2, effective July 1, 1933, provided for payment of SMC for the anatomical loss or loss of use (L/LOU) of only

  • one foot
  • one hand, or
  • one eye.

Notes:  SMC under 38 U.S.C. 1114(k) was

  • payable in addition to the basic rate of compensation payable for disability ratings of 10 percent through 100 percent
  • payable for only one disability meeting the criteria under 38 U.S.C. 1114(k), even though multiple disabilities meeting the criteria may have existed, and
  • not payable in addition to SMC under 38 U.S.C. 1114(l) through 38 U.S.C. 1114(n).

Example:  A Veteran with loss of one foot, plus the loss of one eye, would have been entitled to compensation based on the disability evaluation assigned, plus SMC under 38 U.S.C. 1114(k) for either loss of the foot or loss of the eye, but not both.


IV.ii.2.I.2.b.  SMC Under PL 79-182

PL 79-182, effective October 1, 1945

Note:  The prohibition against the payment of SMC for more than one disability meeting the criteria under 38 U.S.C. 1114(k) was continued.


IV.ii.2.I.2.c.  SMC Under PL 82-427

PL 82-427, effective August 1, 1952, provided for the payment of SMC under 38 U.S.C. 1114(k) for anatomical L/LOU of a creative organ.

IV.ii.2.I.2.d.  SMC Under PL 84-969

PL 84-969, effective October 1, 1956, provided for the payment of SMC under 38 U.S.C. 1114(k) for anatomical L/LOU of both buttocks.

IV.ii.2.I.2.e.  SMC Under PL 86-663

PL 86-663, effective September 1, 1960, created a new level of SMC under 38 U.S.C. 1114(s).  SMC under 38 U.S.C. 1114(k) was not payable in addition to SMC under 38 U.S.C. 1114(s).
Note:  If the additional 60-percent disability establishing entitlement at the “s” level included entitlement under 38 U.S.C. 1114(k), payment was to be made at the 100 percent + “k” level, as this was a greater benefit than the 100 percent + “s” level.

IV.ii.2.I.2.f.  SMC Under PL 88-20

PL 88-20, effective July 1, 1963, provided for the payment of SMC under 38 U.S.C. 1114(k) for deafness in both ears, with absence of air and bone conduction.

IV.ii.2.I.2.g.  SMC Under PL 88-22

PL 88-22, effective July 1, 1963, provided for the payment of SMC under 38 U.S.C. 1114(k) for organic aphonia with constant inability to communicate by speech.

IV.ii.2.I.2.h.  SMC Under PL 90-77

PL 90-77, effective October 1, 1967

  • provided for the payment of SMC
  • removed the prohibition against using an additional disability, ratable as 50 percent disabling, to justify awarding an intermediate rate under 38 U.S.C. 1114(p), when the same disability had been used as the basis for establishing entitlement to SMC under 38 U.S.C. 1114(k).

References:  For more information on awarding entitlement to SMC

  • based on anatomical loss, see PL 79-182, and
  • for additional disabilities, see PL 86-663.

IV.ii.2.I.2.i.  SMC Under PL 106-419

PL 106-419, effective November 1, 2000, amended the criteria for payment to include a woman Veteran’s anatomical loss of one or both breasts, including loss by mastectomy.

IV.ii.2.I.2.j.  SMC Under PL 107-330

PL 107-330, effective December 6, 2002, clarified that loss of one or both breasts includes

  • loss of 25 percent or more of breast tissue from a single breast or both breasts in combination, and
  • receipt of radiation treatment of breast tissue.

3.  SMC Under 38 U.S.C. 1114(l)


Introduction

This topic contains information on SMC under 38 U.S.C. 1114(l), including information on SMC under


Change Date

December 13, 2005

IV.ii.2.I.3.a.  SMC Under PL 73-2

PL 73-2, effective July 1, 1933, provided for the payment of SMC under 38 U.S.C. 1114(l) for

  • the anatomical L/LOU of
    • both hands or both feet, or
    • one hand and one foot, or
  • being so helpless as to be in need of regular aid and attendance (A&A).
Note:  Since PL 73-2 did not provide for the payment of intermediate levels of SMC, the level of L/LOU had no effect on the level of SMC payable.
Example:  Amputation of one arm above the elbow and amputation below the elbow of the other arm would establish entitlement to SMC under 38 U.S.C. 1114(l).

IV.ii.2.I.3.b.  SMC Under PL 79-182

PL 79-182 effective October 1, 1945, provided for the payment of SMC under 38 U.S.C. 1114(l) if the Veteran was

  • blind in both eyes, with visual acuity of 5/200 (1.5/60) or less, or
  • permanently bedridden.

Notes:

  • Concentric contraction of the field of vision beyond 10 degrees was considered equivalent to visual acuity of 5/200 (1.5/60) until July 6, 1950, the effective date of a change to the 1945 rating schedule.  Under the revised rating schedule, concentric contraction of the field of vision beyond five degrees was considered equivalent to visual acuity of 5/200 (1.5/60).
  • PL 79-182 provided for payment of SMC at intermediate levels.

Reference:  For more information on payment of SMC at intermediate levels, see


IV.ii.2.I.3.c.  SMC Under PL 97-66

PL 97-66, effective October 1, 1981, removed L/LOU of both hands as a condition warranting entitlement to SMC under 38 U.S.C. 1114(l).
Rationale:  Effective October 1, 1981, the L/LOU of both hands became one of the criteria for entitlement to SMC under 38 U.S.C. 1114(m).
Reference:  For more information on 38 U.S.C. 1114(m), see M21-1, Part IV, Subpart ii, 2.I.4.

4.  SMC Under 38 U.S.C. 1114(m)


Introduction

This topic contains information on SMC under 38 U.S.C. 1114(m), including information on SMC under


Change Date

December 13, 2005

IV.ii.2.I.4.a.  SMC Under PL 73-2

PL 73-2, effective July 1, 1933, established the criteria for payment of 38 U.S.C. 1114(m) as

  • the L/LOU of three extremities, or
  • blindness in both eyes, having LPO.

IV.ii.2.I.4.b.  SMC Under PL 79-182

PL 79-182, effective October 1, 1945, provided for payment of SMC under 38 U.S.C. 1114(m) if the evidence showed

  • L/LOU of two extremities at a level, or with complications, preventing natural elbow or knee action with prosthesis in place, or
  • blindness in both eyes, leaving the Veteran so helpless as to require A&A.

IV.ii.2.I.4.c.  SMC Under PL 85-652

PL 85-652, effective September 1, 1958, reinstated blindness in both eyes, having LPO, as a condition warranting entitlement to SMC under 38 U.S.C. 1114(m).

IV.ii.2.I.4.d.  SMC Under PL 97-66

PL 97-66, effective October 1, 1981, elevated the level of SMC for


5.  SMC Under 38 U.S.C. 1114(n)


Introduction

This topic contains information on SMC under 38 U.S.C. 1114(n), including information on SMC under


Change Date

December 13, 2005

IV.ii.2.I.5.a.  SMC Under PL 73-2

PL 73-2, effective July 1, 1933, provided for payment of SMC under 38 U.S.C. 1114(n) as blindness in both eyes, having LPO, plus the L/LOU of one extremity.

IV.ii.2.I.5.b.  SMC Under PL 79-182

PL 79-182, effective October 1, 1945, provided for payment of SMC under 38 U.S.C. 1114(n) if the evidence showed anatomical loss of

  • two extremities so near the shoulder or hip as to prevent the use of a prosthetic appliance, or
  • both eyes, or total blindness of both eyes, having no light perception, accompanied by
    • phthisis bulbi
    • evisceration, or
    • other obvious deformity or disfigurement.

IV.ii.2.I.5.c.  SMC Under PL 97-66

PL 97-66, effective October 1, 1981, elevated the level of SMC for


IV.ii.2.I.5.d.  SMC Under PL 97-306

PL 97-306, effective October 1, 1982

  • added blindness without light perception in both eyes as a condition warranting entitlement to SMC, and
  • removed the requirement that blindness must be accompanied by
    • phthisis bulbi
    • evisceration, or
    • other obvious deformity or disfigurement.

Reference:  For more information on SMC for anatomical loss or blindness, see PL 79-182.


6.  SMC Under 38 U.S.C. 1114(o)


Introduction

This topic contains information on SMC under 38 U.S.C. 1114(o), including information on SMC under


Change Date

September 8, 2009

IV.ii.2.I.6.a.  SMC Under PL 73-2

PL 73-2, effective July 1, 1933, established the criterion for payment of SMC under38 U.S.C. 1114(o) for two or more conditions warranting entitlement to SMC under38 U.S.C. 1114(l) through (n).
Important:  No condition could be considered twice.

IV.ii.2.I.6.b.  SMC Under PL 79-182

PL 79-182, effective October 1, 1945, provided for payment of SMC under 38 U.S.C. 1114(o) for

  • bilateral blindness, with visual acuity of 5/200 (1.5/60) or less, in combination with bilateral total deafness, and/or
  • transverse myelitis, with loss of use of both legs and loss of anal and bladder control.

IV.ii.2.I.6.c.  SMC Under PL 85-782

PL 85-782, effective October 1, 1958, created a new level of SMC under 38 U.S.C. 1114(r).
References:  For more information on

IV.ii.2.I.6.d.  SMC Under PL 89-311

PL 89-311, effective December 1, 1965, amended the criteria under 38 U.S.C. 1114(o) (PL 85-782) to read:  bilateral deafness, with the hearing impairment in one or both ears service-connected (SC), rated at 60 percent, or more, plus SC total blindness with 5/200 (1.5/60) visual acuity, or less.

IV.ii.2.I.6.e.  SMC Under PL 97-66

PL 97-66, effective October 1, 1981, elevated the level of SMC for anatomical loss of both arms so near the shoulder as to prevent the use of prosthetic appliances from 38 U.S.C. 1114(n) to 38 U.S.C. 1114(o).

IV.ii.2.I.6.f.  SMC Under PL 98-223

PL 98-223, effective October 1, 1983, provided for payment of SMC under 38 U.S.C. 1114(o) to include bilateral blindness, having LPO or less, with

  • SC total deafness in one ear, or
  • bilateral hearing loss, rated 40 percent or more disabling, with SC hearing impairment in at least one ear.

IV.ii.2.I.6.g.  SMC Under PL 110-157

PL 110-157, effective December 26, 2007, amended the visual impairment criteria for entitlement under 38 U.S.C. 1114(o) to provide for payment of SMC for

  • total SC blindness with 20/200 visual acuity or less, combined with
  • bilateral deafness rated at 60 percent or more (and the hearing loss in either ear is SC).

7.  SMC Under 38 U.S.C. 1114(p)


Introduction

This topic contains information on SMC under 38 U.S.C. 1114(p), including information on SMC under


Change Date

September 13, 2018

IV.ii.2.I.7.a.  SMC Under PL 79-182

PL 79-182, effective October 1, 1945, established intermediate steps of SMC for a level of disability that exceeded the requirements for entitlement to any of the levels of SMC under 38 U.S.C. 1114(l) through (n).
The table below lists the criteria set forth in PL 79-182 for establishing entitlement to each intermediate step of SMC.
Intermediate Step
Criteria
  • L/LOU of
    • one hand or one foot, and
    • another extremity at a level or with complications preventing natural elbow or knee action with prosthesis in place, or
  • blindness of one eye with 5/200 (1.5/60) visual acuity or less, and blindness of the other eye having LPO.
m
  • the anatomical
    • L/LOU of one hand or one foot, and
    • loss of another extremity so near the shoulder or hip as to prevent the use of a prosthetic appliance, or
  • blindness of one eye, having 5/200 (1.5/60) visual acuity or less, and anatomical loss, or blindness, having no light perception, accompanied by phthisis bulbi, evisceration, or other obvious deformity or disfigurement of the other eye.
  • the anatomical
    • L/LOU of one extremity at a level or with complications preventing natural elbow or knee action with prosthesis in place, and
    • loss of another extremity so near the shoulder or hip as to prevent the use of a prosthetic appliance, or
  • blindness of one eye, having light perception, and anatomical loss, or blindness, having no light perception accompanied by phthisis bulbi, evisceration, or other obvious deformity or disfigurement of the other eye.
additional ½ step
an additional SC disability or combination of disabilities independently rated 50 percent or more disabling.
Note:  Later-published regulatory guidance clarified that the 50 percent allowed under PL 79-182 refers to a single permanent disability or combination of disabilities.
additional full step an additional SC disability independently rated 100-percent disabling.

IV.ii.2.I.7.b.  SMC Under PL 85-782

PL 85-782, effective October 10, 1958, established a level of SMC under 38 U.S.C. 1114(r).
Note:  One way to establish basic entitlement to SMC under 38 U.S.C. 1114(r) was for the Veteran to be entitled to the maximum rate under 38 U.S.C. 1114(p).
Reference:  For a history of decisions regarding determination of the maximum rate under 38 U.S.C. 1114(p), see M21-1, Part IV, Subpart ii, 2.I.12.

IV.ii.2.I.7.c.  SMC Under PL 89-311

PL 89-311, effective December 1, 1965, provided for the payment of SMC under 38 U.S.C. 1114(p) to include

  • blindness plus bilateral deafness, which established entitlement to an additional full step of SMC if the evidence showed
    • SC blindness with 5/200 (1.5/60) visual acuity, or less, and
    • bilateral deafness, rated at least 40-percent disabling, with SC hearing impairment in at least one ear, and
  • blindness plus total deafness in one ear, which established entitlement to an additional half step of SMC if the Veteran had
    • SC blindness with 5/200 (1.5/60) visual acuity, or less, and
    • SC total deafness in one ear.

IV.ii.2.I.7.d.  SMC Under PL 90-77

PL 90-77, effective October 1, 1967

  • amended the criterion restricting concurrent payment under 38 U.S.C. 1114(k) and 38 U.S.C. 1114(s), and
  • deleted the prohibition against using an additional disability, rated at least 50-percent disabling, to award entitlement to an additional half step of SMC under 38 U.S.C. 1114(p), when the same disability had been used to establish entitlement to SMC under 38 U.S.C. 1114(k).

Reference:  For more information on 38 U.S.C. 1114(s), see M21-1, Part IV, Subpart ii, 2.I.10.


IV.ii.2.I.7.e.  SMC Under PL 95-479

PL 95-479, effective October 1, 1978, authorized an additional half step of SMC for L/LOU of use of three extremities.

IV.ii.2.I.7.f.  SMC Under PL 97-66

PL 97-66, effective October 1, 1981
  • increased by one full step the levels of SMC payable for bilateral L/LOU of both upper extremities, and
  • established levels of SMC under 38 U.S.C. 1114(p) for the varying levels of L/LOU of the upper extremities.
The table below lists the criteria set forth in PL 97-66 for establishing entitlement to SMC at the three levels shown.
SMC level
Criteria
  • L/LOU of one hand, and
  • L/LOU of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place.

Note:  Level “m½” was previously designated “l½.”

n
  • L/LOU of one hand, and
  • loss of one arm so near the shoulder as to prevent the use of a prosthetic appliance.

Note:  Level “n” was previously designated “m.”

  • L/LOU of one arm at a level or with complications preventing natural elbow action with prosthesis in place, and
  • loss of one arm so near the shoulder as to prevent the use of a prosthetic appliance.

Note:  Level “n½” was previously designated “m½.”


IV.ii.2.I.7.g.  SMC Under PL 97-306 for Bilateral Blindness With L/LOU of One Hand or One Foot

PL 97-306, effective October 1, 1982, provided for the payment of an additional half step or a full step of SMC for blindness with L/LOU of one hand or one foot.
The table below lists the criteria set forth in PL 97-306 for establishing entitlement to an additional half or full step of SMC.

The Veteran is entitled to …

If the medical evidence shows …

a full step of SMC
  • bilateral blindness, with visual acuity of 5/200 (1.5/60) or less, and
  • L/LOU of one hand.
a full step of SMC
  • bilateral blindness, with visual acuity of 5/200 (1.5/60), or less, and
  • L/LOU of one foot which, by itself, or in combination with another compensable disability, is 50 percent or more disabling.
a half step of SMC
  • bilateral blindness, with visual acuity of 5/200 (1.5/60) or less, and
  • L/LOU of one foot, which is
    • less than 50-percent disabling, and
    • the only compensable disability, other than bilateral blindness.
Note:  PL 97-306 also removed the previous requirement that blindness with no light perception be accompanied by phthisis bulbi, evisceration, or other obvious deformity or disfigurement.
Reference:  For more information on additional disabilities rated 50-percent and 100-percent disabling, see M21-1, Part IV, Subpart ii, 2.H.6.

IV.ii.2.I.7.h.  SMC Under PL 97-306 for Bilateral Blindness With No Light Perception in One Eye

The Veteran is entitled to increased levels of SMC for bilateral blindness with no light perception in one eye.
Note:  PL 97-306 changed the level of SMC that may be awarded for blindness by equating blindness with no light perception to enucleation of the eye.
Example:  The appropriate level of SMC for bilateral blindness with no light perception in one eye may be calculated as follows:
  • 5/200 (1.5/60) & NLP = “m,” and
  • LPO & NLP = “m½.”

IV.ii.2.I.7.i. SMC Under PL 98-223

PL 98-223, effective October 1, 1983, authorized an additional

  • full step of SMC for
    • SC blindness, with visual acuity of 5/200 (1.5/60) or less, in combination with
    • bilateral deafness, rated at least 30-percent disabling (with SC hearing impairment in one or both ears), and
  • half step of SMC for
    • SC blindness, having LPO or less, with
    • bilateral deafness, rated 10 or 20-percent disabling (with SC hearing impairment in one or both ears).

Notes:

  • Prior to enactment of PL 98-223, hearing impairment rated 40-percent disabling was required for entitlement to a full step of SMC.
  • Veterans with bilateral blindness, having better than LPO in either eye, plus SC total deafness in one ear, remain entitled to an additional half step of SMC.
  • Veterans with bilateral blindness, having LPO or less, plus SC total deafness in one ear, are entitled to SMC under 38 U.S.C. 1114(o).

Reference:  For more information on 38 U.S.C. 1114(o), see M21-1, Part IV, Subpart ii, 2.I.6.


8.  SMC Under 38 U.S.C. 1114(q)


Introduction

This topic contains information on SMC under 38 U.S.C. 1114(q), including information on SMC under


Change Date

May 15, 2017

IV.ii.2.I.8.a.  SMC Under PL 82-427

PL 82-427, effective August 1, 1952, established a minimum level of SMC for Veterans whose tuberculosis was completely arrested.
Notes:
  • The minimum rate of SMC payable under this law was $67.00.
  • When entitlement to SMC (q) is established based on arrested tuberculosis, the benefit cannot be combined with or added to any other disability compensation.

Reference:  For more information on determining inactivity (complete arrest) of tuberculosis, see 38 CFR 3.375.


IV.ii.2.I.8.b.  SMC Under PL 90-493

PL 90-493, effective August 19, 1968, repealed 38 U.S.C. 1114(q) except for those Veterans who on August 19, 1968, were receiving or entitled to receive disability compensation for tuberculosis.

9.  SMC Under 38 U.S.C. 1114(r)


Introduction

This topic contains information on SMC under 38 U.S.C. 1114(r), including information on SMC under


Change Date

December 13, 2005

IV.ii.2.I.9.a.  SMC Under PL 85-782

PL 85-782, effective October 1, 1958, established a new level of SMC under 38 U.S.C. 1114(r).  Entitlement was awarded if the Veteran met the following criteria:

Notes:


IV.ii.2.I.9.b.  SMC Under PL 95-479

PL 95-479, effective October 1, 1978

Note:  Entitlement under 38 U.S.C. 1114(r)(2) while hospitalized at government expense was prohibited.


IV.ii.2.I.9.c.  SMC Under PL 96-128

PL 96-128, effective October 1, 1979, expanded the field of eligible Veterans under both 38 U.S.C. 1114(r)(1) and 38 U.S.C. 1114(r)(2) to include Veterans rated 100-percent disabled, who are also entitled to SMC at a level of “n½+k,” and are in need of


10.  SMC Under 38 U.S.C. 1114(s)


Introduction

This topic contains information on SMC under 38 U.S.C. 1114(s), including information on SMC under


Change Date

December 13, 2005

IV.ii.2.I.10.a.  SMC Under PL 86-663

PL 86-663, effective September 1, 1960, established a new level of SMC under 38 U.S.C. 1114(s).  Entitlement existed if the Veteran had an SC disability rated 100-percent disabling and

  • an additional SC disability or disabilities, independently ratable as 60 percent or more disabling, or
  • was permanently housebound by reason of the SC disability or disabilities.

Notes:

  • If the Veteran was entitled to SMC under 38 U.S.C. 1114(k) by virtue of the  disability ratable as 60-percent disabling, the Veteran was to be paid basic disability compensation for the disability considered 100-percent disabling, plus SMC under 38 U.S.C. 1114(k), since the combined rate was a greater benefit than paying basic disability compensation for the disability rated 100-percent disabling, plus SMC under 38 U.S.C. 1114(s).
  • SMC under 38 U.S.C. 1114(k) was not payable in addition to SMC under38 U.S.C. 1114(s).

IV.ii.2.I.10.b.  SMC Under PL 90-77

PL 90-77, effective October 1, 1967, allowed for the payment of SMC under 38 U.S.C. 1114(k), in addition to SMC under 38 U.S.C. 1114(s).

11.  SMC Under 38 U.S.C. 1114(t)


Introduction

This topic contains information on SMC under 38 U.S.C. 1114(t), including information on SMC under


Change Date

May 12, 2015

IV.ii.2.I.11.a.  SMC Under PL 95-479

PL 95-479, effective October 1, 1978, established a new level of SMC under 38 U.S.C. 1114(t).  Entitlement was awarded if the Veteran

  • was rated less than 100-percent disabled and was entitled to SMC under38 U.S.C. 1114(k) for the L/LOU of an extremity rated 40 percent or more disabling, and
  • had L/LOU of a paired extremity as a result of a non-service-connected (NSC) disability, not the result of the Veteran’s own willful misconduct, that would be rated, if SC, at least 40-percent disabling.

Note:  38 CFR 3.383 and 38 U.S.C. 1160 allow for the rating of a NSC paired organ or extremity as if SC.


IV.ii.2.I.11.b.  SMC Under PL 99-576

PL 99-576, effective October 28, 1986, repealed 38 U.S.C. 1114(t).

IV.ii.2.I.11.c.  SMC Under PL 111-275

PL 111-275, effective October 1, 2011, authorized a new level of SMC under 38 U.S.C. 1114(t), which is payable at the rate equal to the SMC rate of  38 U.S.C. 1114(r)(2), to Veterans who need regular A&A for residuals of TBI, but

  • are not eligible for a higher level of A&A under 38 U.S.C. 1114(r)(2), and
  • would require hospitalization, nursing home care, or other residential institutional care in the absence of regular A&A.
Note:  The SMC (t) rate authorized by PL 111-275 is not the same as the historical SMC (t) rate that was discontinued in 1986.  The SMC (t) rate authorized by PL 111-275 cannot be rated or awarded using the historical code.
Reference:  For more information on 38 U.S.C. 1114(t), see M21-1, Part IV, Subpart ii, 2.H.12.

12.  Maximum Allowable Rates Under 38 U.S.C. 1114(p)


Introduction

This topic contains information on maximum allowable rates, including information on


Change Date

December 13, 2005

IV.ii.2.I.12.a.  Determining the Maximum Rate Under 38 U.S.C. 1114(p) for the Purpose of Determining Entitlement to SMC Under 38 U.S.C. 1114(r)

PL 85-782, effective October 1, 1958, created a level of SMC under 38 U.S.C. 1114(r).  One of the ways to establish basic entitlement under 38 U.S.C. 1114(r)was for the Veteran to be entitled to the maximum rate under 38 U.S.C. 1114(p), that is, 38 U.S.C. 1114(o).
The question arose as to what constituted the maximum rate under 38 U.S.C. 1114(p).  For example, if a Veteran was entitled to “n½” under 38 U.S.C. 1114(p), this rate was less than the maximum under 38 U.S.C. 1114(o).  However, if the Veteran also had independent entitlement to SMC under 38 U.S.C. 1114(k), that is, “n½ +k,” the rate payable exceeded the maximum under 38 U.S.C. 1114(p), that is,38 U.S.C. 1114(o).
Question:  The question to be resolved then was whether the SMC payable under38 U.S.C. 1114(k) could be added to the rate payable under 38 U.S.C. 1114(p), in this example, “n½,” to establish basic entitlement to 38 U.S.C. 1114(r).
Response:  For a history of the relevant decisions that have addressed the question of what constitutes the maximum rate of SMC under 38 U.S.C. 1114(p), see M21-1, Part IV, Subpart ii, 2.I.12.bd.

IV.ii.2.I.12.b.  History of Decisions Affecting Determinations of the Maximum Allowable Rate Under 38 U.S.C. 1114(p)

The table below describes the history of relevant decisions affecting determinations of the maximum rate of SMC under 38 U.S.C. 1114(p).
Decision and Date
Opinion
General Counsel (GC) Opinion 18-59, dated June 18, 1959 Held that since 38 U.S.C. 1114(k) is not part of 38 U.S.C. 1114(p), the maximum rate under 38 U.S.C. 1114(p) was not being paid, and therefore the Veteran

GC Opinion 9-63, dated June 13, 1963 Reversed GC opinion 18-59 and held that any Veteran entitled to the maximum SMC rate, which is SMC under38 U.S.C. 1114(o), under any provision in 38 U.S.C. 1114 met the basic eligibility criteria for SMC under 38 U.S.C. 1114(r).

This meant that Veterans who were entitled to SMC at the level of “n+2k,” “n+3k,” or “n½ +k,” all of which exceeded the rate of SMC under 38 U.S.C. 1114(o), were to be paid SMC under 38 U.S.C. 1114(r).

Reinterpretation of GC Opinion 9-63 in 1977
  • Determined that GC Opinion 9-63 did not say that all Veterans entitled to the maximum rate under 38 U.S.C. 1114(o) were also entitled automatically to SMC under 38 U.S.C. 1114(r), and
  • held that basic eligibility to the SMC under 38 U.S.C. 1114(r) was established, and if the need for A&A was demonstrated, SMC under 38 U.S.C. 1114(r) could then be paid.

IV.ii.2.I.12.c.  Consequences of the Decision of GC Opinion 9-63 in 1977

As a consequence of the 1977 decision, and in conjunction with the adjustment necessitated by the rate increase mandated by PL 95-117, effective October 1, 1977, work items were generated for each SMC code 15 or 28, “n+3k” and “n½ +k” respectively.
The affected cases were to be reviewed to determine whether the Veteran required A&A, in order to justify continued entitlement under 38 U.S.C. 1114(r).
Note:  A liberal interpretation was to be applied in making this determination, and no Veteran’s benefit was to be reduced below the rate payable under 38 U.S.C. 1114(r) without review of the Veteran’s case by CO.

IV.ii.2.I.12.d.  Determining Entitlement to SMC Under 38 U.S.C. 1114(r) After 1977

After the 1977 decision, entitlement under 38 U.S.C. 1114(r) for any Veterans receiving SMC under 38 U.S.C. 1114(o), or the maximum rate under 38 U.S.C. 1114(p), was to be based on whether a factual need for A&A existed.
Important:  This is the criterion currently in effect.

IV.ii.2.I.12.e.  Disabilities Warranting Consideration Under 38 U.S.C. 1114(o) or (p), as Well as 38 U.S.C. 1114(r)

The need for A&A may be based on one of the same disabilities that is used to establish entitlement to SMC under either 38 U.S.C. 1114(o) or to the maximum rate under 38 U.S.C. 1114(p).
Example:
Situation:  The Veteran is entitled to
  • SMC at the “n½” level, based on amputation of the left arm at the shoulder and amputation of the right arm above the elbow, and
  • SMC under 38 U.S.C. 1114(p) to (o), based on the existence of a separate disability rated 50-percent disabling.
Result:  If evidence shows the Veteran requires A&A by reason of the bilateral amputations, award entitlement to SMC under 38 U.S.C. 1114(r), using SMC code 55.
Note:  Because Veterans entitled to SMC at these levels are, by definition, very seriously disabled, apply a liberal interpretation of the law in determining the need for A&A.
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