tdiu Smc An Issue

[Berta]

As you know the VA has consistently denied any SMC consideration as accrued benefit in my husband's case.I have SMC 2 CUEs pending for last 5 years that they keep sending me the same SSOC on.

But my recent award means in spite of their past errors on this-they have to resolve this issue anyhow -and now -not do to SMC 1151 but due to direct SC disabilities- totalling at least 300%.I am aggressively fighting that point with them.

I feel this is important info we should have-

NVLSP makes the point that M21-1 Mandates adjudicators to infer and consider SMC whenever the medical evidence warrants it.

A mandate is a 'have to' and yet it is more one thing the VA can fail to do properly.

I am beginning to think that since inferred SMC actually requires the VA to consider all medical evidence after they make direct or 1151 100% award or a TDIU award-

this additional review of the medical evidence for SMC purposes probably isn't even done.

Also I bet many vet reps do not realize that 1151 awards also come under the SMC criteria.

A local vet I helped got 100% under 1151 and an additional SMC award under 1151-they messed him up medically and probably shortened his life.

There are a few widows claims at BVA for accrued SMC under Nehmer-

and very few 1151 and SMC claims.

In one letter I received years ago the SMC consideration was denied because they said the veteran didnt ask for SMC.

He couldnt -he was dead already and besides that-SMC consideration is Mandated when the medical evidence warrants it-so most if not all veterans should not have to request SMC at all.

Hope this all makes sense-I just get livid over the crap the VA can state in their letters to us which is often not based at all on fact or established VA case law.

And if we buy what they are selling-without challenging them- we have lost $$$$$.

[Berta]

I sure don't think a vet can get HB and also regular A & A at the same time.(if you mean the SMC "S" award)

But they can add K awards to an S award.

38 USC 1114

[Berta]

I think I misunderstood this -

you are filing a CUE claim????

If you have the 2009 edition of the VBM -I suggest copying page 333, and put citation as to source in your evidence list if you are filing CUE due to lack of past SMC consideration when the medical evidence warranted the SMC mandated consideration.

You can refer them to this page from the VBM and/or a copy of the exact M21-1 guidelines :

M21-1MR Part III subpart iv 6.B.3 (Akles V Derwinski)

[john999]

Teac

I would not start spending my CUE money yet. If you are talking 15K in retro expect a denial initially. In your 2001 rating does is there evidence that you are housebound? I don't think it is going to be that easy. All the VA has to do is to just say they did not make an error. Then you have to appeal it. You are going to have to shove it up their ^^%$$#. My opinion. The burden is on you to prove CUE. No benefit of doubt. No VCAA. No judgement call.

[Berta]

John is right Teac-

My CUE was filed in 2004 and they have yet to even read my legal evidence-or even acknowldege and apply M21-1 regs to my claim.

I found a similiar widow's claim for accrued SMC- it took her years to succeed at the BVA.

The medical evidence has to be fully established because the CUE can only depend on misapplication of legal citations in 38 CFR and/or M21-1.

[Teac]

I sure don't think a vet can get HB and also regular A & A at the same time.(if you mean the SMC "S" award)

But they can add K awards to an S award.

38 USC 1114

You are correct... but my cue claim will only cover the period prior to my award for A&A which was 5 years 5 months. I have cited both of the references we talked about here. In addition, I reminded them that I am not required to request an SMC, that the va is obligated to award it when there is evidence that the veteran is due it.

[Teac]

Teac

I would not start spending my CUE money yet. If you are talking 15K in retro expect a denial initially. In your 2001 rating does is there evidence that you are housebound? I don't think it is going to be that easy. All the VA has to do is to just say they did not make an error. Then you have to appeal it. You are going to have to shove it up their ^^%$$#. My opinion. The burden is on you to prove CUE. No benefit of doubt. No VCAA. No judgement call.

In my 2001 rating I was rated 60% for my lungs, and I was already rated TDIU 1n 1999 because of my back, so I do not have to show actual housebound but instead schedular housebound that is total disability + a seperate 50%. The va is required to grant the highest award possible, if they don't that is CUE. Hell, ironically, I won the 60% award for asthma based on CUE and that took two years.

I know that even thought it should be a slam dunk, things don't always work out the way they should. I have had three prior CUE claims, and won all three at the regional office, I should be able to win this one at the regional office too, but as you suggested I'm not spending the money any time soon....