VA awarded SMC-S, then removed. Don't understand why?

[HitemStraight]

My claim was filed in Feb, 2014 and awarded in July, 2015. I am 100% schedular for back disability. I was awarded SMC-S during rehab (additional 100% ratings after surgery) for 2 hip replacement surgeries (in fall of 2004 & spring of 2005), secondary to the 100% schedular rating. The rehabs overlapped and SMC-S was awarded for total of 17 months (100% plus additional 60%). After the 17 months for rehab, I was awarded 30% for each hip for a total of 60% additional. The SMC-S was retro for the 17 months during 2004-2006, then they took it away after the 17 months in May, 2006. Shouldn't the SMC-S have continued based on the two 30% hip awards ((if added = 60%; if combined = 60% with bilateral factor (30% + 30% combines to 51%, plus 5.1% bilateral = 56.1% rounded to 60%)). This should qualify to continue on with SMC-S beyond May, 2006 when VA removed it.

Am I correct?

Need help understanding, thanks !!

(this post was re-worded from previous post under different title)

 

 

 

Edited August 17, 2015 by HitemStraight

[Berta]

I need to add something......I think the  CUE also rests also on the fact that they failed to consider you for SMC on this new decision.

In a CUE I had granted in 2012, there were 3 parts to that CUE,but the main contention was their failure to consider the mandate of SMC, which is a statutory award.

Although you had it granted before, it became an error in the new decision because of their lack of consideration of it .

In the CUE forum is the story about that CUE I filed re: SMC.

You could use the same legal evidence for that additional CUE as I did.

I will try to find the posts....having probvlems on this end getting used to this new board...which is wonderful.....

[Berta]

SO0RRYSORRY FOR DOUBLES

Sorry for doubles, it is in the part where I cite 38 USC 1114, and then remind them of the fact that SMC is an inferred issue when the evidence warrants it, and then (there was more discussion on this cue here but I have not found it yet) and I quoted and attached an excerpt from the Veterans benefits Manual by NVLSP that explains SMC is mandated by statute.

They committed CUE in your case by failing first to apply the mandate of SMC,then failing  to properly apply 38 CFR 4.26.

My SMC CUE had 3 CUES in it.

They awarded in 2012 but I still have CUE pending on that award.

And have filed about 7 additional CUEs on the same issue since ,in the past 6 months (had to do it all by email because my printer was down)

One thing I learned about CUE...My original CUE for the SMC award and another IHD CUE they awarded too were both short and sweet. The pending CUE I have was much longer but I broke it down in simple terms (again)yesterday (got email from Ms.Hickey and VA Central) and told them again the exact legal errors they made and  also told them how much cash they have to pay me.,with my math notations in that email and why they have to pay me..

The VA turned this fairly easy CUE issue ,filed in Oct 2012, into a cluster ---k, by first lying to me as to it's status, and then by committing more CUEs along the way,and I have held  them to every one of those  errors..

I dont think your CUE will have this problem, but look for more legal errors in any replies they might sent to you...

This initial SMC CUE I had was filed in 2004, and awarded in 2012

A CUE on a different claim decision I got in March ,2015 , was awarded in April, 2015.I had filed 3 CUEs on the denial and even found another one while the RO director was trying to BS me by phone over what the denial 'meant'.

So my long point is, since I have a pending CUE on a CUE award decision, CUEs have become to be, to me, much like the malpractice case I had with VA.....there can be a snowball effect, regarding both of these issues.

There are in essence both due to malpractice...one of medical care and the other of 'malpracticing' on our legal rights.

The should be a simple CUE template here ...I will try to find it.....

[broncovet]

Ok.  Thanks for clarifying the 30% for "hip replacement" was permanent.  I also dont know if the "bilateral factor" applies above a 100% rating or not.  Remember, Chevron deference, which basically says the "Agency" gets to interpret its own regulation as long as that interpretation is not capricious.  

In other words "the Agency" could decide to "interpret" the 100 plus 60 to mean that bilateral factor is not included, since the regulation does not say if bilateral factor is included when calculating "100 plus 60" SMC S.  

Of course, there is the benefit of the doubt, but the CAVC/federal circuit seems to give the agency wide lattitude in deciding what is "in doubt".

Please understand, IM "for the Veteran", and merely state this not that you dont deserve your SMC..you do, but to give you ammo for what the VA is gonna argue against you.    

 

[broncovet]

I agree with Berta, tho.  If the VA "interpreted" its regulation to mean that bilateral factor is not included in ratings above 100% for purposes of SMC S, then they should have so stated.  

[Berta]

Benefit of Doubt does not apply to CUE Broncovet....

nor does the VCAA...the legal evidence must be SOLID

I might have used an M21- MR excerpt too for the SMC CUE I won, just havent had time to look for that..

[broncovet]

Im having a hard time, tho, wrapping my head around what Berta said:  

"I think the  CUE also rests also on the fact that they failed to consider you for SMC on this new decision"

The problem seems to boil down to this.  "Failure to consider" would warrant only a remand to "consider you" for SMC.  Then, on remand, the VA can say, 

"Ok, we considered it, now the answer is no", and then give a R and B.  

I dont know about you, but I hate the remand hamster wheel, which can effect a denial until we die.  I try to make my case, not for a remand (which happens 46% of the time, according to the Chairmans report), but for a reversal.