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Court Wins

CCK Helps Vietnam War Veteran Win SMC After Decades Long Battle for Benefits

Alyse Phillips

April 12, 2022

Updated: November 20, 2023


Summary of the Case

The Veteran served in the United States’ Marine Corps from 1965 until 1969 with service in Vietnam during the Vietnam War Era.  The Veteran first filed a claim in 1969, upon discharge, for a gunshot wound to the left tibia and fibula.

A Rating Decision issued two months later granted service connection for residuals of a gunshot wound with fracture of the left tibia and fibia.  In 1974, a Rating Decision was issued to reduce the Veteran’s from 100 percent to 40 percent for residuals of the gunshot wound.  The Veteran filed a Notice of Disagreement, continuing to seek an increased rating for the gunshot residuals.

In February 1975, an increased rating for gunshot residuals, and an award of TDIU, were denied.  The Veteran continued to pursue his claim by filing a VA9 appeal.

In June 1975, the Board of Veterans’ Appeals granted an increased rating at 60 percent for the residuals of a gunshot wound, but denied TDIU.  The Veteran did not appeal this decision.

The next claim was not filed until 1996 when the Veteran filed for service connection for PTSD, which was granted.  In 1998, the Veteran filed for Special Monthly Compensation based on loss of use of extremities which was denied.  However, in late 1998, the Veteran was granted TDIU.

In 2004, the Veteran filed for service connection for Type II Diabetes, hypertension, a skin condition, and Special Monthly Compensation Level (K).  A Rating Decision granted service connection for diabetes but denied the other conditions.  The Veteran filed a Notice of Disagreement to appeal this decision, continuing to seek SMC K.  Although this claim was again denied in 2006, VA did grant service connection for prostate cancer at this time.

By 2011, the Veteran had also received service connection for peripheral neuropathy, Erectile Dysfunction, and Special Monthly Compensation for Aid and Attendance.  The Veteran went on to continue to appeal for higher levels of Special Monthly Compensation for the next few years.

CCK Takes the Case

CCK took the case in 2018 to help the Veteran win the highest level of Special Monthly Compensation to which he was entitled.  At this time, the Veteran was rated for PTSD at 100 percent from October 2006; left lower extremity gunshot wound residuals with osteomyelitis and diabatic neuropathy at 60 percent from February 1975; right upper extremity diabetic neuropathy at 50 percent from August 2010; prostate cancer residuals at 40 percent from August 2007; left upper extremity diabetic neuropathy at 40 percent from August 2010; right lower extremity diabetic neuropathy at 30 percent from August 2010; and 20 percent for diabetes mellitus, type II.

When CCK became the Veteran’s representation, he had just been denied any level of Special Monthly Compensation higher than Aid and Attendance.  In our appeal, CCK noted that the Board is required to “maximize benefits” and that VA already conceded that the Veteran required regular aid and attendance on account of his disabilities.  Additionally, CCK argued that the Veteran was entitled to SMC based on the loss of use of his lower extremities, caused by his service-connected diabetic neuropathy and gunshot residuals.  Furthermore, CCK posited that the Veteran’s service-connected PTSD also contributed to his need for SMC, as his nightmares would often cause him to fall out of bed and injure himself.

CCK used medical evidence supplied by his doctor, as well as relevant case law, to support the assertion that the Veteran was entitled to SMC (R-1).

CCK Wins Long Overdue SMC Benefits

Following the appeal filed by CCK on behalf of the Veteran, the Board of Veterans’ Appeals issued a decision in favor of the Veteran granting SMC (R-1) in March 2019.

About the Author

Bio photo of Alyse Phillips

Alyse is a Supervising Attorney at Chisholm Chisholm & Kilpatrick. Since joining the firm in August of 2016, she has specialized in representing disabled veterans and their dependents before the United States Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Alyse