ptsd SMC-S, Filing Procedure, and Back Pay

[Ward868]

100% p&t, since 2012... (ptsd)... I want to file for smc-s, but frankly, cant remember how to get the ball rolling... My c&p exam in 2011, clearly stated agoraphobia...Any suggestions, would be appreciated..Also, when approved, do you believe  retro will go back to 2012.. Thank you all, again, for your input, and advice... 

SEMPER FI

[Buck52]

what I don't understand about SMC HB

Not always do they inferred the SMC HB when a Veteran is first granted TDIU P&T OR 100%

I know they never mention it in my award letter?

I could not leave my house for work TO EARN AN INCOME so SMC  H.B. should have been granted According to the regulations below

The only thing for me  this was back in 2002  so maybe the regulations has in fact change since then?

However It was years later I applied for another claim and was awared 70%   and they granted the mandatory SMC. S. H.B.

For purposes of housebound benefits, the Court has held that
being "substantially confined" to the home means an inability
to leave to earn an income. Absent a regulation by the Secretary
defining the term "substantially confined," the Court held that
the term may conceivably be more broadly construed. It found
that Congress intended to provide additional compensation for
Veterans who were unable to overcome their particular
disabilities and leave the house in order to earn an income, as
opposed to an inability to leave the house at all. Hartness v.
Nicholson, 20 Vet. App. 216, 220-22 (2006); cf. Howell v.
Nicholson, 19 Vet. App. 535, 540 (2006)

So in my opinion this veteran Ward868 has a legitimate argument  if he kept his appeal going within the one year? And this should go back to his original award date.

JMO

Edited February 12, 2017 by Buck52

[FormerMember]

SMC is awarded when proven it is due by the preponderance of the evidence of record. There is no filing date or suspense date. If you were due SMC HB (SMC S) any time after your medrecs prove you were 100% P&T and unable to work, that is the effective date. It can be filed as a CUE but not treated as a CUE, per se, because there can never be a claim for it nor a denial and a year to appeal it. Any time you want to file for SMC S based on HB, they must go back, examine the evidence and pay you from the date it can be determined you were unable to work. Period. Sadly, VA is expected to intuit your entitlement. Unfortunately, unless you're missing all the legs and arms etc. they do not perform this test. That's what your VSO is for. Somebody needs to teach them how to do SMC, Buck.  

[broncovet]

I seem to recall a (hadit) vet who filed a CUE for VA "failing to adjucate SMC S" when awarded a single 100 percent disability and (VA) did not adjuticate SMC S" per the M21 Berta cited.  From what I recall, the VEteran got his SMC S and retro.  

I wish I could recall who it was.  Maybe someone else remembers.  

I agree that entitlement to SMC S is inferred whenever the Vet meets the criteria, BUT, the question remains as to what to do when VA DOES NOT infer SMC S, as required.  (It seems VA gets away with not following its own rules, even tho that is not supposed to be the case).  

It may be best to "not" file a Cue, but to file for SMC S.  That is what I did, but, if they dont backdate it, then CUE is a real possibility, because VA violated their own regulations by not adjuticating SMC S.  (According to the M21 Berta cited, the Veteran need not be "100 plus 60", because another real possibility is housebound in fact, reminding you that if a Vet is NOT working, then he wont be leaving the home "for work", as in Howell.)  

[FormerMember]

Negatory, Loyal. Look at it like this. You have everything you need for SMC S but they fail to grant. In the new VBMS world, you have to go through a generated 526EZ claims portal (Janesville), to be read into the system. Face it. If you're going to Hell, you'll have to go through Janesville. You can thank Rep. Paul Ryan, the Speaker of the House for that. It's his home town. He made VA to put it there.

After they discover you're right, they grant SMC but probably effective the day the claim was filed. We're talking a horribly poor computer program. You must then file the 0958 NOD (Janesville, of course) asking for the EED for the system to "see" the NOD. That generates an auto reply saying they got it (eBennies or by USPS). A year or two later, you get in the queue for the OK corral DRO hearing/ Review to sort it all out. This is what is called a "reconsideration" by the VA. But remember, even then it can never be CUE because the seminal test for CUE is always a decision that is final and the suspense date for a substantive appeal has expired. SMC is awarded "at such time as the preponderance of the medical evidence dispositively proves the entitlement". As such, a failure to award it is a brain fart, not a CUE. The failure to grant the proper EED is not a CUE but merely a failure to read the regulation in a liberal nonadversarial fashion and if the evidence is in equipoise, the higher of the two ratings will be awarded.

CUE is a road less traveled for good reasons. Why go there when you can use the regs as written to accomplish the same thing using 2017 technology? Don't overthink it. VA law is horribly simpler now and does favor us if you learn how. I just saw a VSO using a 21-4138 form to file a new claim at the Vet Center last  week. With a ball point pen. I went in with a client to get their files. The VBMS system cannot read a 4138 even if it's typed. It's not "VBMS-friendly" with little boxes for the letters. As of now, there is no specific form to file for anything- even CUE -without using a 526 EZ. 

[Buck52]

in other words  we all must use the 21-526 ez  for it to be ''VBMS'' friendly filing claims for what ever reason.

21-526 EZ Gets you in to the new system?

Also? broncovet

It may be best to "not" file a Cue, but to file for SMC S.  That is what I did, but, if they dont backdate it, then CUE is a real possibility, because VA violated their own regulations by not adjuticating SMC S.  (According to the M21 Berta cited, the Veteran need not be "100 plus 60", because another real possibility is housebound in fact, reminding you that if a Vet is NOT working, then he wont be leaving the home "for work", as in Howell.)  

what about the SMC S criteria? Stated in the Regs

if vet was house bound infact not working and can't leave his home for work   then he should be awared TDIU P&T And if he has another s.c. disbility seperate and rated 60% sc  then he meets the SMC-S 1 Criteria   usually eed is date of claim

jmo

 Like this

•  

Edited February 16, 2017 by Buck52

[FormerMember]

Roger that, Buck. Anything you desire monetarily from VA, be it a dependency issue or a claim for increase currently requires a 526EZ to upload it into VBMS. I expect that will change just as it did when they came out with the 21-0958 for NODs. We already have the VA 9 for a substantive appeal but even that was optional up until the inauguration of the VBMS. That pretty much covers the three most important phases of a VA claim so it's a start. Eventually you'll be doing so on line like posting on Facebook.