pacmanx1

Congratulations on your win.

Since you already have a diagnoses of depression secondary to your service-connected disability in your medical records then that would be the easiest claim to file and be awarded. Always go by the medical evidence.

Actually, SMC payments are based on the record and is the opposite and is as soon as the veteran meet the criteria. Your post is correct about normal effective dates, but SMC payments fall in a different category, and they are not considered normal effective date payments. See Buie v. Shinseki.

Due to the fact that you are rated 100% P & T SMC-S. It is not likely that the VA would schedule you for any type of C & P exams. If you are/were being treated by the VAMC, that would be your only appointment schedule, but the VA would not try to schedule you for benefit evaluations. When a P & T rating is granted/awarded, it is basically determined that your current disabilities would most likely last for the rest of your life. Now if you file for an increase or for a higher SMC rating, then the VA may schedule you for a C & P exam but that is only if you put in for an increase. You can relax and let the good times go by.

Unfortunately, this is a little off, as stated in my post, ratings begin with the effective date and continues until the rating is changed (increased or decreased) and the rating period restarts, or the rating hits the 20-year protection cover period. My 2008 100% scheduler P & T rating is running to the 2028 20-year protection cover period while my most recent 2023 rating decision that awarded me a 2003 TDIU P & T effective date rating is actually protected by hitting the 20-year protection cover period and can only be removed if the VA can prove fraud. Even though I am only paid at the 100% rate, there are different ratings for different time periods. Even my 2022 rating decision that awarded me a 2005 effective date is running to its 2025 protection cover period. So, your statement is off because I have three separate and different ratings running at the same time but for different cover periods of time. Two separate TDIU P & T ratings with a different 100% schedular rating that cover different time periods. If you stop and think about it, all ratings have a similar cycle.

Let’s keep in mind that rating decisions are based on medical evidence and effective dates. I was awarded/granted 100% schedular P & T with an effective date of 2008. When the VARO made this decision, I still had one appeal pending and by the time the BVA and the VARO made their new decision on my appeal, I was granted an increase in rating which awarded me a TDIU P & T rating with a 2005 effective date, but I appealed this rating again because I felt that the VARO low balled my rating. The BVA then granted me an increase (higher rating) in which that also awarded me an even earlier effective date of TDIU P & T going back to 2003. My ratings are going backwards because I am trying to recover some of the benefits that I felt/feel should have been granted to me.

Actually, they are two separate and different forms, a VA form 20-0995 is for filing a Supplemental review and the VA Form 20-0996 is for filing an HLR (HIGHER LEVE REVIEW). With a Supplemental claim you can add new evidence and with an HLR you cannot add any new evidence. VA Form 20-0995 VA Form 20-0996

I have two separate appeals pending, one is going back to the CAVC because a BVA judge refused to follow a JMR Order, and the second appeal is still at the BVA waiting for it to be assigned to a BVA judge.

This maybe a good thing, only time will tell.

If your appeal is pending and in review, you are going have to wait for the new decision. If your appeal is at the BVA level, then it may have to go to the CAVC to get a new remand before the BVA gives you a proper decision.

You can try to request an Advancement on the Docket but most of us do not fall in this category. Outside of the AOD, it is just a waiting game. Customer Service - Board of Veterans' Appeals (va.gov)

Unfortunately, there is no “average wait time.” There are a few of us and maybe even more in a similar situation with even longer wait times. I myself am in the same boat but I filed a simple EED (Earlier Effective Date), and the VARO sent me to an updated C & P exam and the examiner included my onset diagnosed date and my VAMC treatment progress notes which were way earlier than my assigned effective date, but the VARO still denied my claim. I then filed a supplemental claim pointing out the error, but the VARO still denied my supplemental claim. My appeal is past the two-year mark going on the three-year mark with no insight of actually getting to be reviewed. It says that it is on the Direct Review Docket waiting to be assigned to a judge for review.

It is not wise to trust the VA, never put your trust in them. Believe it or not but I recently won a 25 (twenty-five) year EED (EARLIER EFFECTIVE DATE) that the VA/BVA kept saying was not service related even though my records are full of evidence. It took the CAVC twice to make the BVA grant my claim/appeal and now my appeal is going back to the CAVC because the last BVA judge refused to completely follow a JMR (Joint Motion Remand). I would say trust in your lawyer because he/she wants to get paid also.

We would need more information about the situation to give better advice. With that said, if you are rated 100% for convalescence, then that rating would be re-evaluated after your recovery time, but it could be extended. If you are rated a combined 100% rating it is not likely for the VA to reduce your rating.

I would think that the simplest answer would be is to try to file for service-connected disability claims, once the VA considers your disabilities are military related, then you could possibly get compensation benefit instead of pension benefits. We have no idea of your symptoms and or what is in your records, but you should review them very carefully to see if you have any disabilities that could be considered as service related and go from there. How Are Pension Benefits And Disability Compensation Different? | Veterans Affairs (va.gov)

I agree that this boils down to 43 which is a 40% rating but were you already service connected for any other disability? Read over your decision several times to see if you missed something, one (1) more 10% rating would put you at the 50% rating.

I believe it is called accrued and substitution benefits. Sorry for your loss. VA Accrued Benefits and Substitution

Congratulations on your win.

1. It’s possible but only if you file a new appeal and you can prove that your symptoms met the higher criteria for the entire time or that these were continued pursuit claims/appeals and request the higher rating for each issue. 2. If you are not working this could lead to either an (EED) Earlier Effective date of TDIU benefits or an SMC-S rating which pays a little more of $300 - $400 per month above the 100% or TDIU rating. Typically, a veteran would have to be rated 100% or TDIU for a single rating plus have additional rating(s) of 60% to be eligible for SMC-S.

Unfortunately, both Legacy Appeals and AMA Appeals are both taking multiple years getting through the BVA. Of course, Legacy Appeals are taking longer but AMA Appeals were supposed to take no more than a year, but my current AMA Appeal is going on three (3) years and counting and whenever I contact the VA or the Whitehouse hotline for an updated status, I am told that my appeal is in the Direct Review Lane and there is no estimated time when the BVA will be able to get to my appeal. Just so you will know, I filed a CUE claim requesting an Earlier Effective Date (EED) of an already service-connected disability. The VARO reopened my claim, sent me to an updated C & P exam and the examiner not only wrote me a favorable medical opinion, the examiner listed the VAMC medical treatment records and diagnosis dates in my DBQ Evaluation, but the VARO still denied my claim. I went to my local VARO, and they suggested that I fill out a supplemental claim and the VA would catch it and award my correct effective date, but my supplemental claim was also denied. I was then told to fill out an HLR and they would catch it. I thought that it would most likely be another denial and then I would have to file an appeal to the BVA, so I decided to file directly to the BVA but my appeal for an EED is still pending with a favorable medical opinion that the BVA has just not gotten to it yet. I will hit my third year in a few months. Way longer than a simple year.

I would say go for it. If you have no new evidence or records, then file a CUE claim. If you have new evidence or evidence that was not considered in your decisions, then file a reopen claim. Either way be prepared for the VA to deny your claim. Because you are asking for an Earlier Effective Date (EED), it has been my experience that the VA and maybe even the BVA will fight you all the way to the CAVC for a proper decision. I filed two requests for EEDs several years ago and the VA reopened my claims, sent me to two separate C & P exams and then completely ignored their examiner’s medical opinions. That’s right, the VA denied both my claims and I had to file appeals to the BVA. One appeal was partially granted but it is going back to the CAVC, and the other appeal is sitting at the BVA waiting its turn to be sent to a VLJ (Veterans Law Judge) to make a decision. I am past the two-year mark and going on to the three-year mark and this is an AMA Appeal where the BVA website still continues to state that a Direct Review Appeal will be completed in less than 365 days, but I am well over 800+ days and counting and there is no light at the end of this tunnel.

The way I see it is there is no reason for you to stop posting, I just did not understand what you were disagreeing to. Now as to the regulation and the VA making sure that veterans are confused. Keep in mind that the VA is supposed to follow not only the regulations, but they are supposed to follow Precedential Decisions. Once a veteran is rated 100% P & T, and then awarded additional ratings/benefits, the VA has a duty to assess all the veteran’s disabilities to determine if the veteran qualifies for SMC-S but instead, the VA forces veterans to file a claim for SMC-S and tries to cheat veterans out of retroactive benefits. According to Precedential Decision Buie v Shinseki, the VA is supposed to assess the veteran’s disabilities to determine if the veteran meets the criteria of SMC-S and it does not state anything about the veteran filing a claim or new claim for SMC benefits. It states that the VA have a duty to maximize the veteran’s benefits. So, if the veteran meets the criteria, why have the veteran file an additional claim? The best thing about Buie v Shinseki is that it states that, if after such assessment, VA determines that the claimant/veteran is entitled to special monthly compensation, the effective date of the award of special monthly compensation will be the effective date assigned for the award of benefits for the final disability that forms the relevant combination of disabilities. That is Buie v Shinseki, 24 Vet, App. 242, 250-251 (2010) amended (Apr. 21, 2011).

If you are rated TDIU P & T the extra or additional benefits comes with the Permanent and Total rating part. Read your decision packet again and there should be a VA Form 21-8760 in it that talks about Additional Benefits for Veteran Service Connected with a Permanent and Total Disability. So, yes, your dependents should be covered under CHAMPVA. Make sure you read both pages. 21-8760 (va.gov)

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If this was a simple (recent) VARO Decision within a years' time, file a new appeal back to the BVA requesting an EED earlier effective date. If the BVA deemed your claim/appeal to be reopened, then 38 CFR 3.156 says the VA has to re-adjudicate the entire evidence both old and new. Also, Clemons V, Shinseki is a CAVC Presential decision and can be cited. 38 CFR 3.103C covers Procedural Due Process and Other Rights. Constructive receipt of VA treatment records.