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Am I there yet?

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jamescripps2

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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 by jamescripps2
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I understand what you are saying Buck. The only issue up for for decision at the BVA is the EED, so I figure that there is no reason to not let it play out. There is everything to gain and nothing to loose.

Unless I have failed to fully understand the Mandate requiring the VBA inferred claims upon any new 100% grant at M1-21 I have a chance at recovering the retro.

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I don't think an application was needed, because SMC is inferred by statute.

As my SMC CUE progressed (it only took 6 years at Buffalo :wacko:and then  awarded in mere weeks when it went to the Nehmer RO in Philadelphia):biggrin:, one of the riduculous letters of senseless rhetoric from my VARO stated that the claim was denied because the veteran had "never applied for it in his lifetime."I immediately wrote and asked them for the exact regulation that says SMC has to be applied for. Of course they never responded.

The only evidence I had for this CUE was the 1998 decision that contained the CUE ,ie:

Rating sheet 

100% SC P & T for PTSD posthumous award ( 1997) and 

80 %  Stroke NSC ( which  was wrong- it is 100% now "as if SC" for a 1151 stroke ,in the same decision that awarded my DIC under 1151 for "multiple deviations in a usual standard of care" , which included the  malpracticed stroke.

And I enclosed a copy of the SMC mandate from a page out of the VBM by NVLSP, as well as the specific M21-1MR regulations that state it is mandated to be considered whenever the medical evidence warrants it.

My CUE was based on the "lack of proper consideration", because 1151 ratings and awards are not except from the SMC mandate.     SMC CUE awarded posthumously 2012.

James,I dont get this:

"I was paid retro for eight months instead of the sixty eight months that would have been due if the mandated A&A had been inferred in the earlier decision as I contend that it should have."

"I have been given the option of withdrawing the request for the earlier effective date or doing nothing thereby letting the claim be certified to the Board and the EED date be adjudicated by the BVA."

Who gave you those options without considering CUE?

Or have you filed CUE on that decision?

 

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  • HadIt.com Elder

James

I would not withdraw the EED you have the evidence  and as Ms berta mention a CUE is warranted here. this is a Mandated Award and should go back to your original filing date.  they failed to do that.

it mention the rater must inferred & consideration be taken in the M-21- 1MR Regulation/Previsions. However I notice they never mention the EED? but as we all know the EED should be at the time the claim was first filed.

Quote from Ms berta

''And I enclosed a copy of the SMC mandate from a page out of the VBM by NVLSP, as well as the specific M21-1MR regulations that state it is mandated to be considered whenever the medical evidence warrants it.''

You have been Adjudicated for SMC but their timing is way off on your EED.

I do think you can get it..I don't see how they can get out of it.

Quote their own Regulations back to them.  eh!

Edited by Buck52
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  • HadIt.com Elder

Earlier Effective Date Generally, under applicable criteria, the effective date of an award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.

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The SSOC says that I can submit more information rebutting the partial grant decision. That is optional because if I do not respond the claim will be certified to the board for the EED issue.

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. My position and contention is that the RO was mandated by M21-1MR to consider A&A because the medical evidence at the time of the original decision supported the need of A&A. In light of the medical evidence of record at that time the rater should have invited a claim for A&A and developed it.

Yes Berta, I think that it was a CUE and I will ask the bVA to call it that in my rebuttal to the SSOC before it is certified to the board.

And yes, on the SSOC I have been also given the option of just dropping the issue of an Earlier Effective Date and settling for the eight months retro instead of the sixty eight months retro.

In my opinion, if I cave in and settle for the eight months retro instead of letting the BVA adjudicate the issue, they should then infer SMC for brain dead!

I expect Alex will chime in on this one with his take on it sooner or later.

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  • HadIt.com Elder

Your correct James, do this ASAP.

''My position and contention is that the RO was mandated by M21-1MR to consider A&A because the medical evidence at the time of the original decision supported the need of A&A. In light of the medical evidence of record at that time the rater should have invited a claim for A&A and developed it''

However CUEs are very very hard to prove for EED

At least you got a SSOC, some veterans don't get one.

I would agree to the A&A BUT disagree with the EED and just say what you said here    Like I mention before they will say you never applied for the A&A and try to beat you out of your retro.

Quote the MR-21-1-MR Back to them, I would try to settle without CUE, Unless this is the only way to settle it?

..I was reading some BVA Case law for EED and CUE is very hard  because they always come back with a B.S. technicality.

 James Quoted=''if I do not respond the claim will be certified to the board for the EED issue.''

I would not trust them.

JMO

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