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

[broncovet]

Dont forget the "outcome determinative" portion that is required for CUE.  Its not enough that VA forgot to dot an "I" or that they messed up the DTA letter.  

I doubt that VA "failure to give a reasons and bases for decision" is outcome determinative.  There is a big difference between "error" and an error that meets CUE standards, and one of the differences is that it makes a difference in the outcome.      You want to focus only on the errors VA makes which are outcome determinative.  They could, and likely do, have many errors in a single decsion, but it is unproductive for us to persue CUE on the errors which are not outcome determinative.  

Edited August 14, 2015 by broncovet

[HitemStraight]

I believe you are right broncovet - Stick with the major error and not 'splitting hairs' on the decision letter headings .....

Bertha - thank you for all the help and information, I will the the templates when developing the CUE. I'm glad I took a hard look at the decision and just didn't accept it for what it was. Thanks to this Forum I know that I have a good claim for the CUE. You all have provided solid information and help.

Asknod - you made the statement above: "Also remember, SMC in any form is always retrievable because it is due and owing at the time you qualify"

Did I understand you to mean that SMC is available going back to the time that I was diagnosed/treated for chronic hip disease even though I did not have a separate rating for the hips at that time. I had been treated for hip disease at the VA Medical Center going back to the mid 1980's. I have treatment notes, x-rays, CT Scans and radiologist reports supporting this. The chronic hip disease has been considered secondary to my back condition, Spondolytis, which was awarded a single 100% rating in 1980. Can I request a rating for the hips back to the mid 1980's and request SMC retro accordingly??

 

 

[broncovet]

I think what Ask nod is getting at is that, is in reference to the effective date of SMC.  You see, the VA has to infer SMC whenever the Veteran meets the criteria, he need not "apply" for SMC.  

(While many times it is still necessary to apply for SMC as the VA "overlooks" this, still, when it comes to the effective date, it will (should) happen according to facts found, and NOT the date of application.  

(Remember, the general rule for effective dates is that it is the later of the date of application or "facts found" (the date the doc says you are disabled).  Since there is no "application date" as the VA must infer SMC whenever the Veteran meets the applicable criteria, you should get retro on your SMC back to the date you first became eligible for SMC.  If I recall, Ask Nod got SMC S back to 1994.  

Edited August 14, 2015 by broncovet

[HitemStraight]

OK, so let's see if I got this straight .....

I started this topic because I thought I should have received SMC-S from May 1, 2006 on to current, and I am convinced to file a CUE based on the decisions in the claim I filed in February. 2014, and was awarded last month, July, 2015. As we have been discussing here.

Now I am finding that I might be eligible for SMC-S retro to when I was first diagnosed and treated for chronic hip disease of both hips. As mentioned in post above, I have all doctors notes, x-ray, radiologist reports etc, going back to 1985.

Am I understanding this correctly? If so, how do I go about requesting the SMC retro to 1985. In the CUE I was about to prepare? In a NOD from the latest decision mentioned above? A new claim? Or just request it at the Regional VA Office level in the form of a letter?

Thank for your input !!

 

[broncovet]

You got it right.  If you were eligible for SMC S (met the criteria, such as "100 plus 60" or housebound in fact), then you should get retro.  You dont have to apply, you simply need to demonstrate you met the criteria.  

There are a couple ways to do this:

1.  You can appeal the RO decision disputing the removal of the SMC S, AND appeal the effective date.  The effective date appeal of SMC S should have been done within a year of the decision which awarded SMC S.  

2.  YOu can file a CUE, alleging it was clear error not to award SMC S back to 1985 if you can demonstrate you met the criteria back then.  

3.  You can file a new claim for SMC S. 

 

Of these, for you, it seems like numbers one and 2 are the best.  However, if you do file a new claim for SMC S, and get it, you can still appeal the effective date.  

[Berta]

The EED should go back to the decision EED date that you file the CUE on.

It is not the date of the CUE claim nor the date of their decision, it is the first documented date they were aware that the SMC criteria should have been applied,by medical evidence.

Maybe  my personal decisions here are too confusing because I am the survivor, not the veteran.But still it should be the same outcome.

The  decision I CUED was made in 1998.Not a word in it about SMC but it held the ratings for both the 1151 SC PTSD 100% ,and also the 1151 stroke rating which was wrong (but still  enough) to award SMC...I think it was at 80% because they failed to consider the 100% P & T evidence)

 

The SMC was due to 100% SC PTSD EED 1991 and then to 100% CVA  august 9 1992. (the proper SMC EED I sought under the CUE...8-9-1992

The first date my husband had been eligible for SMC was 8-9-1992, because his 100% for SC PTSD had already been established and noted in the 1998 decision and

that decision ,4 years after his death also held the established medical evidence for the 1151 stroke, to garner the date of  8-9-1992 as the EED.

They could have awarded 100% plus 60% SMC S, instead they awarded Housebound...it was the same amount, so no need for me to quibble about that.

That claim sat at my RO from 2003 and 2004, with an additional IHD CUE claim and they were not awarded until 2012.

I made the mistake of asking for reconsideration (which does work for many) and I got some of the most ridiculous rhetoric you can imagine.I filed a timely NOD on their initial denial and couldn't wait to get to the BVA. (The IHC CUE was completely ignored and not adjudicated)Then Nehmer happened and I asked the Nehmer RO to give both of  the CUE claims proper precedence and that they could impact on my AO IHD decision. They did. Nehmer awarded both CUEs.

Don't be discouraged by those dates. My initial AO IHD was a denial, I filed CUE via IRIS and 3 weeks later it was awarded.

My October 1151 claim was denied in March,2015,  I filed CUEs via email to the Director ,( they made 4 or 5 legal errors in it, and was awarded in March.2015 ,about a month later.

 

I have been on my ROs shit list since I got a FTCA wrongful death settlement in 1997 and I know every successful award I got since must have pissed them off because they were all large awards.I sure don't think you will go through that type of BS.

A former vet rep told me they had written 1151 all over my C file....and they hate 1151 claims.

So what. I might have to file another one under CUE..

If the VA had given my husband proper medical care, he could still be alive by now, 20 years later , and would have gotten  plenty  more comp $$$$ from them in his lifetime then my accrued claims  and DIC ever got.

The regs at time of my accrued claims have changed for the better. I am prohibited for attaining more than 2 years of accrued under the older regs.

so even though the PTSD award was a favorable 3 year EED, I got only 2 years accrued.