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I received a decision on my claim on July 23, 2015. The VARO failed to award me SMC-S for bilateral 30% ratings. (30% each for each hip replacement). I am 100% rated P & T and the two 30% ratings combine with bilateral factor to 56.1% rounded to 60%. I was not awarded SMC-S for these ratings (100% plus 60% additional). This is what I filed CUE on.
I posted back on August 15th the following post:
http://www.hadit.com/forums/topic/63768-va-awarded-smc-s-then-removed-dont-understand-why/ , and I received excellent information and advise from this forum.
I went ahead and developed my CUE request basically stating that the RVSR committed CUE in not awarding the SMC-S based on 38 USC 1114(s) with supporting exhibits included for Combined Ratings Table, Bilateral Factor and the related Statues. This was filed in the form of a 2 page letter request with bold Request For CUE at the top of page 1.
Today, I received a letter from the VARO stating that I must file all claims for compensation on Form 21-526EZ, and they would not do anything until this was done. Also, they did not specifically mention the CUE request. This was basically a form letter they sent me.
I did not think I needed to file a CUE request on a standard form for compensation. This is not a new claim and VA rules state that they should not treat a CUE as such. If I file this CUE again on the requested form, won't this set it up as an new claim? I do not want this!! I am CUEing my recently decided claim .....
Need help understanding this, what I should do, and any comments with those who have filed CUE's recently !!!
Thank you for your replies ....
I am having a problem with my scanner right now. I will scan and provide when I get it resolved. But, the first line of the letter reads:
'We received your correspondence indicating that you would like to file a claim for benefits. VA regulations now require all claims to be submitted on a standardized form'. I then goes on to say in the next paragraph ..... 'In order for us to begin your claim you must submit an application for benefits ....' Ya Da Ya Da ...... some standard BS, then it says .... 'if you intend to file for compensation you must complete and return Form 21-526EZ ....'.
I was just concerned that this would be treated as a new claim and not a CUE. But if this form is now required as ASKNOD says then I will fill it out and submit accordingly. Just didn't make sense to me, as everything I read on this forum and elsewhere, indicated I just need to submit a request for CUE letter.
With regards to the 30% ratings .... They awarded two 30% ratings, one 30% rating for each hip, after the 100% convalescence period ratings for bilateral hip replacement surgery. So, I got 100% for each hip for convalescence, then they reduced to the minimum rating of 30% for each hip (total of 60%). They awarded SMC-S for the convalescence period (one year), then removed SMC-S once they reduced the ratings to 30% for each hip.
The CUE I submitted was for the VARO not awarding (or continuing) the SMC-S once the two 30% ratings were in place. (Then should have just continied the SMC-S when the convalescence ratings of 100% were reduced to 30% each hip. That was the essence of my submitted CUE.
If you combine the two 30% ratings, it combines to 51%, per the Combined Ratings Table. Then add 10% of 51% (5.1%) for the Bilateral Factor (left and right hip). This equals 56.1%, rounded up is 60%.
My 100% independent rating for back condition plus the 60% should qualify for SMC-S. Yet they did not award it ongoing (they actually stopped it) !!!!
That was the basis for my CUE.
Plus, this is retro back to May of 2006.
I just looked at Form 21-526Ez, and this makes no sense to me why they would require this form to be filed for a CUE. This is obviously for a new claim for compensation as is has area for listed disabilities being claimed. I am not claiming new disabilities, just to review the recently decided claim fro their error.
Al they ever do is confuse veterans more ......
what cue are you filling? A claim not closed cant be a cue. What is your cue?
If you got one good luck with winning it,
I'm sorry you can file anything you choose but it wont take long to get that
I agree with asknod, I remember on hadit radio show attorney John Walsh talked about filling anything now on 21- 526 (b)ez
also he could attach a hand written note to the form of any other information he wants to let them know or an explanation of what he wants the SMC Award because of the miss cue on the VA part at the last rating, or A CUE will be filed. or something of this nature..
not sure what you want you cant get smc from a temporary condition you got paid at 100%
why would they continue to pay you this plus smc?
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