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CUE by failing to adjuticate entitlement to SMC S


I got a "single" 100 percent disability in a 2009 VARO decision.   The VARO did NOT adjuticate SMC S, but instead adjuticed SMP (housebound).  


I think they were trying to confuse, which they did. 

The problem with a CUE with this, is that I dont know it would be "outcome determinative" because "consideration" does not mean it would be awarded, but only considered, thus

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Right.....that was the point of my 2003 SMC CUE...."failure to consider" the mandate of SMC , 

because I knew once they considered SMC ,based on evidence in VA's possession in 1998 (decision date I cued)they would have to pay the retro SMC and they did. It only took 7 years.

They could have awarded the SMC S under 100% plus over 60% for independent system (100% PTSD and 100% under 1151), but instead awarded HB, which the evidence clearly warranted,under the 1151 award. The cash is the same either way.

I wish I could add more here but VA called me AGAIN and a man with 23 years claims experience said he will try to help straighten out my pending CUE issues.(gee, I have at least 23 years of experience myself with claims so I figured Great

until he said...oh this is an 1151 issue , and I dont know much about 1151 :wacko:), and I gave him the exact regs from M21-1MR to read, also page 2 of the disability comp site at www.va.gov, and also , (he had my email suggesting they call General Counsel to interpret the 1151 regs) since he had the Nehmer math breakdown in front of him I pointed out 3 ways in which the amount was wrong.

Even if VA's position is correct (that they dont have to pay 1151 accrued ---but they do) the award clearly shows that their last accrued award to me (which has nothing to do with the 1151 award) means they totally forgot the entire Agent Orange IHD payment,50% for 6 years combined with the 30 SC PTSD, and also as I pointed out to him , they gave a bunch of zeros in the entire year of 1994 for any payment at all but I told him my husband lasted 10 months of that year before VA killed him and  he  immediately saw that error, so he does know something is drastically wrong with the past award amount.

he will call me either tomorrow or Monday and maybe that will get me a little closer to resolving my issues.

I thought they awarded the AO IHD under both direct SC and under 1151 (as it was claimed in 2010) but apparently they didnt.

If they combined those ratings (as they should have) the AO amount is still wrong anyhow in the Nehmer decision.

I sure have my own issues to deal with and I see there are unanswered questions here sometimes......

we need more people ,willing to chime in and everyone here should check and double check any "audit" stuff they get which is basically a list of what they paid and what the new amount is etc etc to include dependents and they make MANY errors in those audits  ,hoping we wont find out.




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How much importance or weight does a CUE carry?

You seem to indicate that VA hates a CUE and that they fight big time to avoid one.

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Is the VA required to give SMC's When they award a higher % to say 160%???


I thought the veteran had to request it?


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The VA just don't like us to find the CUE'& point it out to them.

They know the CUE's are  hard to get approved but if a vet is careful and presents all the right evidence  they have no choice but to award on there mistake/error



Edited by Buck52

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Buck.   Yes, Entitlement to SMC when the Veteran meets the applicable criteria is inferred, and no new application is necesssary.  This said, many times the VA "overlooks" benefits due to a Veteran, and the Veteran must then initiate an application or he simply wont get it.  Even then, as some found out, expect the VA to fight you on it, trying to find any loophole to not pay you.  

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