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

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HitemStraight

Question

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 by HitemStraight
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Exactly, Berta.  You said it better than I did.  If he was awarded 100 plus 60, with an effective date in 1995, then the CUE effective date would be 1995.  You see, when CUE is granted it is granted "as if the error did not occur".  So, if this Va decision was correct, he would have gotten SMC S in 1995 (again assuming you got 100 plus 60 awarded in 1995).  Thus, in this senario, he would get retro to 1995 if the Cue were successful.  (However, dont think the VA wont try to hornswaggle you on the effective date of that also.)  

I beleive Alex recently won SMC back to 1994 because that was the date the evidence showed he should have gotten SMC S.  

Rememeber, the VA takes a position against the Veteran that is substantially unjustifed 70 percent of the time, according to Chief Justice Roberts.  

Edited by broncovet
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Great information and direction from everyone. I have been thinking about this all morning. I believe what I am going to do is file an immediate CUE on the original question on this topic. That is, request CUE for VA's removal of SMC-S and failure to award continued SMC-S after the surgical convalescence periods, when they reduced the hips to the minimum 30% for each hip on May 1, 2006. As Asknod said: "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."

Clearly this is CUE material !!

With regards to requesting SMC retro back to when I was first diagnosed with chronic hip disease in 1985, I believe I am going to make that a part of a NOD that I will file down the road after I receive a copy of my requested C-file, and have time to gather all my records going back to 1985 (x-ray, CT scans and radiologist reports, treatment notes etc). 

I had not mentioned this in this topic, but I was also denied in the same claim for ulcerative-colitis, which is considered associated with and/or secondary to Spondolytis (both inflammatory conditions). I have had moderate to severe bouts with it for 25 years as well, and might be looking at complete colon removal in the future. So you can see why I would want it considered service-connected. I had a nexus letter from a VA doctor who treated me at the VA Medical Center in another state for over 25 years and knew my medical case history quite well. The rating decision for ulcerative-colitis stated that they put more weight on the doctors opinion who examined me during my compensation physical exam over the doctor who treated me for 25 plus years. More VA BS. I also need to visit two outside doctors and get them to provide me additional nexus letters and medical records for 'new and material evidence', for a NOD appeal. The GI doctors who currently treat me at the VA also believe that the ulcerative-colitis is associated with the Spondolytis, and numerous medical opinions, literature and research can be found connecting the two conditions.

Anyway, I was planning on filing a NOD on that and figure I would save the retro to 1985 SMC request, for the chronic hip disease, for that. I suppose I could just file a new claim with the retro SMC request to 1985, as Broncovet suggested, but figure it would fit into the NOD. Don't know what might be quicker .....

 

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