Am I there yet?

[jamescripps2]

Yes I am there. My appeal only took eight months. In October , 2015, I was awarded loss of use of a hand and a foot and got the vehicle grant w/adaptive equipment and the SAH grant. I appealed that decision because upon any new 100% grant the VA is obligated by statute to consider A&A as an inferred issue and they failed to do that.

In December 2015, I appealed the decision because A&A was not considered as an inferred issue. My contention was,  I was awarded SMC "L" for loss of use of two extremities in the decision.  Had the VA considered A&A as an inferred issue at the time of that decision as they should have, I would have qualified for regular A&A. An A&A award is also a SMC"L" award. According to 38 CFR 3.350 and USC 1114 if you are entitled to two separate ratings between L and N you qualify for the "O" award. In my case I have two awards at SMC L that qualify for SMC "O". The A&A automatically goes to the R-1 rating if you obtain the prerequisite "O".

I got eight months retro but will appeal the decision for an earlier effective date of January 2011, the date that the loss of use claim was filed. More later.

Edited August 14, 2017 by jamescripps2

[FormerMember]

You are never required to file for SMC of any flavor.It's "imputed" by the M -21. They enter all their parameters of your disease/injury and the M 21 is supposed to "infer" you may be entitled to SMC X, Y or Z. A thorough examination of the facts will determine if you qualified for A&A (which is SMC L). Absent an investigation or the M 21 not raising that query means they never considered it or entered the data needed to raise the issue of entitlement. 

Some of you fail to understand the M-21. Yes, it is a written manual but it is also a computer algorithm. VA raters input all your information and symptoms into the M 21 Eight Ball and it spits out a magic answer. One wrong entry and the whole determination becomes invalid (and pointless). This is the root cause of why so many  fail to win or do not receive the proper award. Determining if A&A was due would normally be a simple exercise-read the file. In this day and age of OCR word recognition with a .pdf, VA raters depend far too much on the written record and their computers to tell them if you are entitled without doing the real dirty work of actually determining it by reading the medical records. It's an insidious VA disease called "lazyism". 

clear prop

[Buck52]

So if the computer spits out a wrong answer and the examination says the facts are that the SMC  should been inferred but the glitch or someone hits the wrong button & results in a  wrong answer and the Veteran gets beat out of the SMC.

So why can't the Veteran send a reminder of the MR-1 Regulations to the Rater?  that's not filing for SMC  its just getting the facts correct to be inferred the correct SMC  like the MR-1 Regulations state.

[jamescripps2]

Thanks for the response asknod. I have a great respect for your knowledge. My claim will be certified to the BVA for the EED issue. The VBA did award the SMC "O" and the R-1 along with eight months retro in a partial grant that was generated as a result of my calling the Veterans Whitehouse Hotline. If I am successful with the EED appeal at the BVA they will owe me sixty more months of retro. 

The issue to be decided at the BVA is whether or not A&A should have been inferred in the original RO decision and if so, did the medical evidence of record at that time indicate possible entitlement a grant of A&A at the rate of SMC"L"?  My contention is that the medical evidence in the hands of the RVSR at the time of the original decision indicated entitlement due to the profound nature of my 100% service connected heart disease. The RVSR had good cause to invite and execute the development of A&A at SMC "L".

This, as in all claims, could be argued and adjudicated either way, but I am confident. I am hopeful that the Appeals Modernization Act OF 2017, that was just signed by President Trump, will speed up the appeals process.

[jamescripps2]

Update, The appeal for an EED was denied at the BVA in a decision dated April 23, 2020. On May 22 my appeal was filed at COVA. I am lawyered up and ready to go to court.

[broncovet]

James, based on the posts in this thread, you should win this, in my opinion.   You posted:

Quote

The RO says that they were not required to consider or infer the A&A on the earlier decision because I did not claim A&A. 

This is bogus, and I am in a  similar situation.   As explained by Berta, SMC is mandated by statue, and you dont have to apply for it.  .  No application is needed, VA is supposed to "infer" SMC when ever your conditions warrant it.  

An alternative would be for you to "apply" for SMC L, and, if you get it, then fight for an EED arguing you deserved it much earlier.  Remember, their is no "claim date" with SMC..the effective date is the "facts found", because VA is required to submit the "claim" not you.  

The BVA also awarded me 100 percent and did not consider SMC.  While I strongly considered doing exactly what you did, I went a different way:  I filed a Supplemental claim for SMC, eventually got it, and now I will likely be appealing the effective date.  

The reason I did not appeal my BVA decision is, of the attorney's I contacted, none would represent me on this issue.  Im glad one law firm did.  

     I hope your attorney does this full on, with at least a panel of judges, so this is precedential, establishing the board must consider SMC when a "single" 100 percent is awarded, just like it says in M21.  

     May I inquire as to the law firm you hired to represent you?  I have some ideas, but really would like to know.  

[Berta]

I tried to find the April 23, 2020 decision at BVA but couldn't find it.

"The RO says that they were not required to consider or infer the A&A on the earlier decision because I did not claim A&A. "

They pulled that BS with me, as well,  It was an accrued claim because the veteran ,my husband, was dead.

I probably rattled this all off in their older part of the thread----

 

The rating decision I used as evidence for a CUE ( filed in 2003) clearly revealed he had 100% P & T SC for PTSD and over 60% ( 80 I think but I had that upped to 100% ) for an 1151 stroke he had.

100% plus  60% or more  for an independent additional disability equals SMC S.

The medical evidence also supported Housebound award.

I asked the RO to provide me ,in writing, with the regulation that says a veteran has to specifically ask for SMC...of course they couldn't ------ there is no regulation that says that.

That claim was finally set for BVA transfer ( I was glad because the BVA can read) but a miracle suddenly happened , Nehmer AO IHD, and I also had filed an IHD CUE in 2004 as well as the SMC CUE.

The Nehmer RO awarded those CUES and also awarded SMC S under both theories but only one retro payment.

ALMOST 9 years after I had filed the original CUE claims.

Do you have the Docket # handy James? If not it just might not be there yet- BVA does try to post their decisions faster than they used but they are still limited by the COVID situation.

I heard from OGC the other day regarding another matter and they want my evidence via email as a pdf because they still cannot handle snail mail submissions.   My daughter works in DC as well- DOD- and they too  are still affected by the COVID situation.

 

 

Edited June 25, 2020 by Berta