VA awarded SMC-S, then removed. Don't understand why?

[HitemStraight]

My claim was filed in Feb, 2014 and awarded in July, 2015. I am 100% schedular for back disability. I was awarded SMC-S during rehab (additional 100% ratings after surgery) for 2 hip replacement surgeries (in fall of 2004 & spring of 2005), secondary to the 100% schedular rating. The rehabs overlapped and SMC-S was awarded for total of 17 months (100% plus additional 60%). After the 17 months for rehab, I was awarded 30% for each hip for a total of 60% additional. The SMC-S was retro for the 17 months during 2004-2006, then they took it away after the 17 months in May, 2006. Shouldn't the SMC-S have continued based on the two 30% hip awards ((if added = 60%; if combined = 60% with bilateral factor (30% + 30% combines to 51%, plus 5.1% bilateral = 56.1% rounded to 60%)). This should qualify to continue on with SMC-S beyond May, 2006 when VA removed it.

Am I correct?

Need help understanding, thanks !!

(this post was re-worded from previous post under different title)

 

 

 

Edited August 17, 2015 by HitemStraight

[HitemStraight]

I was reading ......  Part IV, Subpart ii, Chapter 2, Section H. Special Monthly   that Bertha included above. Paragraph 36 g. General Information On SMC  Showing the Denial of SMC in Rating Decisions states that " The denial of SMC, whether specifically claimed by the veteran or inferred by the rating activity, must be addressed in the Reasons for Decision section of the rating decision". 

Just an observation .... I went back and reviewed my decision award letter, and no where does it have a Reasons for Decisions section in the rating decision. There is a heading that states What We Decided. - Don't know if I am splitting hairs or not, but did notice that.

Also, according to the M21 above "The denial of SMC, whether specifically claimed by the veteran or inferred by the rating activity, must be addressed in the Reasons for Decision section of the rating decision". Nowhere in any of the decision explanations does it state why they stopped SMC-S on May 1, 2006, just that they did it. Are they not required to inform me why they made that decision to stop it and not continue on as we have discussed her ?

I was thinking that I should use this with other backup and evidence of CUE when I file.

From my award letter awarding then removing SMC-S: 

 

[HitemStraight]

Thank you Bertha !!

[FormerMember]

The rater did the standard reduction of the 100% rating for post-operative surgery and never performed a new rating analysis. It's CUE as the decision is now final. File it. Also remember, SMC in any form is always retrievable because it is due and owing at the time you qualify. This is an example of failure to properly accomplish a rating more so than CUE but the financial error is still the metric to weigh. You will get your money-about 55 K or so. I got mine back to 1994 in April after I did something similar to this. 

The joy in finding these errors makes Hadit.com and other Veteran-centric sites a Godsend. VA would love for us all to live in ignorance. It would make their lives much easier. The internet is like a bad habit to them.

[john999]

When I got my CUE for "S" I had just sent in a request for S via a Statement in Support of Claim.   The VA called a CUE on themselves.  I used the decision that stated total plus 60% were entitled to S even if it were TDIU plus 60%.  What is the name of that decision?

[Berta]

Yes-use anything at all to support the CUE.

My SMC Cue was based on failure to apply 38  USC 1114 in a 1998 decision

also failure to properly rate the veteran ( they gave him 80%) but the medical evidence revealed 100% P & T due to 1151 Stroke

and failure to consider my evidence under 38 CFR 4,6 (my favorite regulation),that supported the 100% P & T 1151 rating(medical evidence established in the veteran';s lifetime ) as well as my legal evidence that supported the fact that they erred.

The rating sheet clearly stated 100% SC PTSD Nov 1, 1991 as the EED until death.

The proper SMC CUE retro is almost 52 thousand. I got 32 thousand in 2012 because it included the AO IHD 5 year retro,with the grant of the SMC cue claim and granted my other 2004 IHD CUE claim , they subtracted the veteran';s 100% P & T SC PTSD award from the entire 1151 retro and totally eliminated the entire 10 months at 100% under 1151 for 1994 yet the veteran lived until October of that year. The Dec 1993 start date has only zeros as no payment due for those entire 10 months.

I have had a first of it's kind case, whereby the VA paid wrongful death settlement to me, then 1151 DIC award, but then two DIC awards due to direct SC (but only one check.)and then I had the additional 1151 issues.S9o I can un derstand that they are not familar with the 1151 regs too mcuh, but still ,I sent them the reg citation 3 years ago ...but they have still not read any of my evidence from the CUE claim in 2012

The awards for 1151 claims to vets who already have established SCs, as the reg  says inM21-1MR cannot  deprive them of  any part of their  rightful SC  comp.They deprived the veteran as well as me, as due an accrued benefit, of the  proper retro amount under 1151 100% P ^ T plus SMC from Aug 1992 to Oct 1994. under the SMC, rate chart for 1vet, 1 wife, 1 child.

 

 

 

 

 

 

[FormerMember]

Bradley v. Peake, John 2009