WAC-Vet75 Posted March 12, 2011 Share Posted March 12, 2011 PR.....looks like the fight is on!!! Did they state what law/regulation they used in the denial for the 100% plus 60%? NOW, it becomes a matter of what the law says, and giving good argument concerning the "intent of Congress".... this is EXCITING!! With the wording of the laws/regulations, concerning basic compensation rates, SMC rates, sure looks like you will be setting precedent!!!! They HAVE to follow the law/regulation, and they have not. Now, we have to hope that the CAVC finds this case as "interesting", and pulls it up on docket sooner. Link to comment Share on other sites More sharing options...
HadIt.com Elder john999 Posted March 12, 2011 HadIt.com Elder Share Posted March 12, 2011 According to what Berta found the VA should have considered HB or A&A for Phil 20 years ago. Link to comment Share on other sites More sharing options...
Berta Posted March 12, 2011 Share Posted March 12, 2011 YES, I think SO!!!!!!! My CUE is based in part on the link I posted- SMC is a Mandated statutory benefit. When VA awards 100% they are supposed to consider either A & A, HB, or any other form of SMC that could be due the veteran.They are supposed to infer SMC and then consider it. Bradley V Peake changed that to include TDIU as well as 100% schedular. Every time I read the decision I am cueing I get mad. It was obvious they made a major error in it. This is part of a March 2006 response I made to the VA.I pulled it out but the actual citation I quoted in my response-I cant find! I sure enclosed copy of it with this letter and recall using it for something here and now I cant find it. "Your enclosed letter to me, dated March 10, 2006 does not clarify which CUE claim you mean. I filed a CUE claim regarding SMC on July 14, 2004 and an additional CUE on heart disease on Sept 17,2004. I respond here regarding both of these claims. You have listed the criteria for CUE. 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." Whe Link to comment Share on other sites More sharing options...
carlie Posted March 12, 2011 Share Posted March 12, 2011 Okay, finally received the decision letter and a SSOC dated two days later. They called a CUE on the ED and hypertension decisions and awarded the SMC "k" award retro to 2001. As for the 100+60 SMC "s" claim they still denied it, explaining that the additional 60% must be determined using the combined ratings chart. They also denied my 20 yr old claim for HB/A&A. It looks as tho I'll need to go to the BVA, on the 100+60 denial. Fun, fun, fun!!! pr pr, That's what I was thinking on the recent bank deposit. I think the 100 + 60 deal will win at BVA - just some 'mo money' to look forward to down the road : - ) Link to comment Share on other sites More sharing options...
Berta Posted March 12, 2011 Share Posted March 12, 2011 To add: my SMC CUE is for Accrued benefits. I think VA probably makes any errors in SMC accrued decisions. This claim is similiar to some degree: http://www4.va.gov/vetapp09/files1/0900129.txt THE ISSUE Whether there was clear and unmistakable error (CUE) in a February 15, 1997, rating decision, which denied entitlement to a higher level of special monthly compensation based on the need for aid & attendance under 38 U.S.C.A. § 1114®(2), for accrued benefits purposes. ORDER A February 15, 1997, rating decision, which denied entitlement to a higher level of special monthly compensation based on the need for aid & attendance under 38 U.S.C.A. § 1114®(2), for accrued benefits purposes, was clearly and unmistakably erroneous. http://www4.va.gov/vetapp09/files1/0900129.txt Link to comment Share on other sites More sharing options...
HadIt.com Elder john999 Posted March 12, 2011 HadIt.com Elder Share Posted March 12, 2011 I am thinking of 20 years of "S" for Phil in retro. That would be a lot of money. I know Pete53 has the same CUE, and it also means some big money. I think the VA will fight this because of the amount of retro so you guys just have to live long and prosper. Me too on my CUE that is slowly working its way through the court. It is not as clear cut as "S". Link to comment Share on other sites More sharing options...
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