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fullcount15

Cue Claim - TDIU SMC-S

Question

Last month I was awarded a 100% scheduler rating for my COPD.  I am also rated for traumatic arthritis right ankle – 20%, traumatic arthritis left ankle ankle – 20%, left foot pes cavus with arthritis and plantar fasciitis – 20% and right foot pes cavus with arthritis and plantar fasciitis – 20%.

I was also awarded Special Monthly Compensation (SMC-S).  I wasn’t aware of what SMC-S was so I did some research to understand the additional benefit.

Prior to my 100% scheduler rating I was awarded TDIU in December 2008 for my COPD (rated at 60%). In addition I also had the aforementioned SC ratings for traumatic arthritis right ankle – 20%, traumatic arthritis left ankle ankle – 20%, left foot pes cavus with arthritis and plantar fasciitis – 20% and right foot pes cavus with arthritis and plantar fasciitis – 20%.

After researching SMC-S benefit it seems as though I should have been awarded the SMC-S benefit when I was awarded my TDIU in December 2008.

What would be the best course of action.  CUE claim?  If so, can I submit a cue claim via e Benefits?

Thank you in advance for any assistance anyone can provide.

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SMC is due and owing from the date it can be established that you qualified. Thus, if you got TDIU in 2008, technically you would qualify. But.... Bradley v. Peake (2009) did not decide the matter of TDIU being the equivalent of a true 100% rating for SMC purposes. You would not use CUE because that is far too hard to prove. It would rest on Bradley not having been decided when you qualified. Since the law, as it was known and accepted in 2008 did not recognize TDIU as a true 100% disability for rating purposes, CUE is decidedly NOT the route to pursue.

Rather, send in all the ratings showing entitlement to SMC S in 2008 based on the TDIU plus an additional 60% unrelated to the COPD and see what they say. You would file it on a 526EZ as that is the only way to get in the door these days. Most assuredly, avoid the use of the phrase CUE and concentrate on entitlement based strictly on ratings. It may be they would only grant from the date Bradley was decided by the CAVC, too. Bradley was decided Nov. 26, 2008 but it would be retroactive to the filing date of Mr. Peak's claim. Some feel Congress made the point clear as far back as 1994 so that is food for thought. Nevertheless, you can see why they suddenly gave you the SMC when you hit the 100 for COPD. They immediately recognized their error. SMC is one of the least-understood of benefits administered by VA and errors are common and frequent. 

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Thank you asknod for the speedy reply.

In order to complete the 526ez correctly and avoid any delays, where do I list my reason for submitting my claim?  The only place I see is in Block 13, or should I submit a supplemental form (memorandum)?  I just want to insure I dot all the i's and cross all the t's. 

Also, should I cite Bradley/Peak somewhere in the claim.

Thank you again for your assistance.

Your fellow Vet and Washingtonian,

fullcount15

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Entitlement to SMC S effective on ___/__/2008 based on TDIU and 60% or more in separate ratings in Block 13. If you want, you can attach an extra sheet and cite to 38 CFR 3.400(o) circa 2008 for your relief. I doubt the folks in Seattle could figure out what the CAVC is-- let alone Bradley v. Peake. If they deny, look me up. I'm accredited now. 

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Thanks again asknod!  I appreciate your help.

Will be submitting it via e Benefits.  With any luck it should go quickly as my request for increase for my SC COPD took only 2 months.

Hopefully I can be of help to others with the knowledge you've provided me.

Your fellow Vet and Washingtonian,

fullcount15

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Was the SMC S award for Housebound?

Did the foot conditions warrant the housebound award in the 100% decision?

If so did they warrant SMC S Housebound in the TDIU decision?

Did VA make any statement at all in the past TDIU decision as to SMC consideration?

What is the exact legal error they made that you are claiming?

Since your COPD rating request went fast...I wonder if the 60% for TDIU decision should have been 100% SC COPD  in the first place....????

That decision might hold a CUE basis.

Do you get SSDI solely for COPD?

If so did the VA know that when they awarded the 60% for COPD?

Edited by Berta

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