Smc S

[john999]

If you claim "S" based on TDIU plus 60% should not your award go back to the date you became eligible and not the date you filed since this is a statutory award. A vet should not even have to file for it (ha,ha). I have been eligible for over two years but only found out recently.

[Berta]

That is the basis of my CUE claim for SMC John.

The VA should have considered SMC when the veteran reached 100% SC for his PTSD.

His 1151 CVA should have triggered SMC "S". (1151s are eligible as well as direct SC disabilities for SMC)

My husband's 1151 heart disease also should have warranted SMC but the VA never rated this disability yet it was the prime malpracticed disability that caused his death.

His CVA and his heart disease are now directly service connected.

I have been fighting my CUE claim since July 2004 and was anxious to hear it was set for BVA transfer.NONE of my legal evidence has ever been addressed by the VARO-the first point I made on my I-9 .I was glad it was going to the BVA but the VARO suddenly pulled it and stuck it with my AO IHD claim.

The IHD regs changed my CUE completely.

Still- this benefit (SMC) is supposed to be considered whenever the medical evidence warrants it.

My CUE was shaped to use the lack of diagnostic code for heart disease and no rating for this at all and then the wrong diagnostic code with a 100% NSC rating for my husband's CVA.

If the VA fails to consider SMC when the medical evidence warrants it (such as when a TDIU or 100 % SC award is made and there are other independent SC disablities) and the decision is not appealed frmally, then this is basis for a CUE claim.

My situation is unusual.The VA OGC had in their possession the documents that warranted a rating on my husband's heart disease.I could not get these documents until the FTCA settlement went through.Still- the VA had them by time of the decision I cued.

At ne point (I sure have gotten many letters from them regarding my CUE- they said the veteran never asked for SMC himself.

I had to point out his PTSD was a posthumous award and his heart disease and strokes were still part of his 1151 claim-at the rating board the AM of his death (subsequently awarded years later) so how could a dead veteran ask for SMC ?

The responses I have received from the Buffalo VARO since filng this CUE claim in 2004 have been outrageous as well as convoluted.I might never get a decision under CUE.

I expect now a decision under Nehmer. It will cost them more money now then if they had acknowledged the CUE and made the SMC award long ago.I think they have to award SMC "M"-2 already established separate 100% SCs, then AO IHD at 60% staged to 100%SC and A & A or Housebound.

[john999]

Berta

Right, the VA is supposed to consider a 100% schedular vet for SMC "S" when the 100% is awarded. It does not mean they have to award it, but I think they never consider it. They only consider it if you claim it. To me that is an error according to the VA's own words. I bet if you took a poll of every 100% vet almost none would have a decision where it said the VA considered "S" and either denied it or approved it. So this is a way for the VA to hold onto the money and let the vet die.

[Dolphin25]

Berta...

I would like to ask a question as this may pertain to others in like situation...In Title 38 C.F.R. 3.157 Report of examination or hospitalization as claim for increase or to reopen.

"(a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement"

"(b) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen."

When the Doctors who did my C&P's, and there 3 C&P's, they all made reference to disabilities I have now that I have not filed a claim for, one being Loss of use of my legs, Peripheral Neuropathy, Diabetes Neuropathy, loss of memory, loss of bowel control...but they did rate me on

loss of bladder control and gave me a 10% rating even though I did not file a claim for that. Should the RO, in fact, consider what is written informally in a Doctors summation as an informal claim for benefits?? Further reading on this CFR and the underlying Statute seems to be saying

just that. I have always understood that the VA can interpret a letter, a phone call or other means as a Veterans desire to initiate a claim for that disability. If that is the case then wouldn't that be a CUE to file an appeal on??

Berta

Right, the VA is supposed to consider a 100% schedular vet for SMC "S" when the 100% is awarded. It does not mean they have to award it, but I think they never consider it. They only consider it if you claim it. To me that is an error according to the VA's own words. I bet if you took a poll of every 100% vet almost none would have a decision where it said the VA considered "S" and either denied it or approved it. So this is a way for the VA to hold onto the money and let the vet die.

[john999]

I got a earlier effective date based on a hospitalization. I don't know if the report of conditions not claimed on a C&P exam could be CUE. That may be a bridge too far.

[Dolphin25]

I got a earlier effective date based on a hospitalization. I don't know if the report of conditions not claimed on a C&P exam could be CUE. That may be a bridge too far.

Guess there is one way to find out and that is to file them as CUE...but again I go back to what the RO did on giving me a rating for Incontinence when I didn't file a claim for that yet it was written in the summation by the C&P doctors as were the other disabilities but

yet they only rate me for that one disability, why didn't they rate me on all of them. The one reason I did not file a claim was that I didn't want to confuse my claim with too many issues. Perhaps if they would have, then maybe they would have been required to grant me the

higher level of Aid and Attendance, as that would have put my claim within their guidelines....I'm only speculating here.

I faxed the DAV the Letter from my Doctor stating if I did not receive a higher level of care then I would be required to go into a 24hr care facility and along with that letter I sent them what I considered CUE, no whether or not they file a DRO on my behalf is another question as I have already had issues with them in which the Rep stated he would not file an appeal b/c he didn't think I had anything coming....that's like being on death row and your attorney stating he doesn't think I have anything coming on appeal so he is not going to file, what kind of logic is that??