Thinkb4uSpeak

The VA is required to consider SMC if they grant a "total and permanent" 100% rating.

If they do not consider it - DO NOT FILE A CUE CLAIM (unless you have no other legal recourse ... i.e., your appeals are final, and you have no ability to reopen). A CUE Claim should be a claim of last resort when there are no options left.

Instead, if you are within the time to file an appeal (1 year from the Ratings Decision) file a Notice of Disagreement appealing the denial of SMC in the Ratings Decision that granted a 100% P&T rating.

If you are not within that time, file a claim to Reopen to consider SMC...wait til you get the SMC, then file a NOD challenging the effective date using the argument that the VA should have inferred SMC from a grant of 100% permanent and total disability. Only after losing all those appeals do I think it wise to file a CUE claim.

Here are a few posts from the Veterans Law Blog to help out:

Read about CUE Claims - and what makes them difficult and dangerous - here.

Here is some basic information about what goes into a Notice of Disagreement.

Failure to decide "inferred claims" like SMC is one of the Top 5 Most common errors that the BVA makes.

Hope the answer, and the links, help.

Chris

If we can see the actual last 100% decision, perhaps we can help more.

If VA should have considered SMC, by medical evidence on your 100% award, and they didnt, they have committed a CUE.


My SMC CUE is in the CUE forum. ( 3 CUES in one decision , lack of proper consideration of SMC in 1998 decision ,Lack of proper rating on the 1998 decision I Cued, and lack of proper percentages.)

Here are a few excerpts from my claim and some of the evidence I used.:.

"1. VA states : “The claim specifies the factual or legal error”….etc

As stated before to VARO, the VA (38 CFR 1114 et al and M21-1) will consider SMC entitlement for any claim that has SMC potential. The veteran, Mr. Simmons, was denied proper application of this basic VA regulation although he fully satisfied the conditions for consideration. Posthumous rating decisions after his 1994 death failed to extend proper consideration of SMC. I have enclosed as Exhibit A, the M21-1 SMC
Criteria and refer you specifically to Paragraph 8.13:

b. “If the evidence demonstrates disability meeting the criteria for A & A or housebound benefits, entitlement must be established; failure to do so would constitute
clear and unmistakable error."

The veteran was 100% SC due to PTSD and also 100% due to disabilities under Section 1151. Obviously that entailed consideration for the “S” SMC award. I

The veteran had been declared totally disabled by the SSA for PTSD as of Oct, 1, 1991 as well as totally and independently disabled by the major CVA he had on August 9, 1992. He had two separate award letters from the SSA.

The veteran , per VA case law, with two independent disabilities, each at 100%, one being direct service connection and the other incurred under Section 1151, fully was eligible for proper SMC consideration.

The enclosed Office of General Counsel Pres Op ( # 30-97) Exhibit C, regards a NSC veterans fully eligible for and granted SMC. Exhibit C. Also the following BVA decisions reflect Section 1151 awards and also the awards of SMC:"

(I left the links off here...BVA cases are only good when they confirm a legal principle and I had a list supporting the legal principle of my CUE)


and I also added a copy of part of a page from NVLSP that states that SMC is mandated by statute in every situation where the evidence indicates it should be considered..

The VA in one of many of their futile attemopts to deny me, stated that the veteran did not request SMC.

NO veteran should need to request SMC. It is supposed to be an inferred issue whenever the documented medical evidence suggests it should be considered.

If you can scan their decision as to the statement they made about SMC ( or why they didnt consider it) we can see if they committed a CUE.

The Rating sheet would help as well.

Please cover your C file number, name, address etc prior to scanning and attaching it here.

VA granted the CUE in 2012 and made a posthumous SMC Housebound retroactive accrued award to me and also properly rated and paid for his 1151 CVA at 100%.( 20 years after the CVA happened)