Was I Entitled To Smc All These Years?

[FormerMember]

I like to think of old SMC S claims as "tardy" rather than CUE. You are not trying to revise an incorrect decision (CUE) so much as to point out that you were entitled to it on X date and they, in their haste to rate, simplemindedly forgot or overlooked it. SMC in any venue , be it K, S or L, is still due and payable when the entitlement arose. It makes no difference when. Once you prove entitlement, they have to pay it back to the day the medical records prove it was due. It's not so much a legal battle to assert your rights but an evidence argument which is far easier to win.

And don't worry about pissing the VA off. If anyone could do it, by now VA would have found a way to hang Berta and me. We've cost them years of litigation alone.

[Berta]

LOL!

"It's not so much a legal battle to assert your rights but an evidence argument which is far easier to win."

I agree!

You are always right on the mark Alex!

[glider222]

Asknod,

How should I claim this if not CUE?

[FormerMember]

Well, If it passed through the hallowed halls of the BVA and was denied, you file with them at 810 Yellowbrick Rd. NW 20420 and ask for a Motion for Reconsideration. You can legally do this at any time after a BVA denial. If you won a review, this would set your old decision aside and generate a new de novo review based on your argument. If they refuse to reconsider, it's off to the races at the CAVC.

On the other hand, if they somehow erred and missed it at the RO, you politely supply them with the correct evidence and say "Please send the retro to my local branch of the Bof A and be quick about it." Again, if they choose to deny, you saddle up pronto for the BVA and do not waste any time playing DRO poker. If they reach a modus vivendi with you , all's well. If not, again, it's off to the CAVC where you win.

Good luck.

Edited February 18, 2015 by asknod

[john999]

I was TDIU P&T for about 8 years when I got another rating for 60%. After reading about Bradley v Peake I made a claim/request for SMC "S" as in statutory HB. It had been two years since I had gotten the extra 60% award, and I had five 10% awards since a few years before that. The VA called a CUE on themselves and granted HB with two years retro. So the VA did treat it as a CUE because they should have granted me "S" as soon as I got the 60% award. If I had not claimed it I would not have it today. If I have a claim and there is a shot at getting money out of it I will file. I am not filing just for the heck of it, but if it is for potentially fatal disability or there is money on the table then I am going for it and I don't care what some VSO tells me. In the past I let VSO's and the VA succeed in discouraging me from filing appeals etc. That has not happened in the last 25 years, but it happened when I was a young vet. The hostility leaking out towards Vietnam vets was nasty. I felt it with all the bad vibes included.

John

[Buck52]

Sometimes ya gotta shake the tree for the apples to fall!