Entitlement to Smc S?

[Bluntly]

Greetings to all and hope all are doing well as can be currently 90% (100% TDIU) from PTSD at 70% alone. Other disabilities are 30%, 20%, 10%, 10% and two 0%’s. Just awarded rhinitis today which gave me the other 10%, so this didn’t change my overall percentage. Also I have an appeal that was granted this year from 2016 and currently I’m at the end of that just waiting to have a rating and effective date if that matters, which should be any day now.

Do I qualify for smc s now? I know once my appeal gets rated I will be but was curious to see if it applies to this new claim that was granted. Thanks for your time and any insights are appreciated.

[Rattler]

2 hours ago, broncovet said:

Congratulations!   Im sure your lawyer will review the effective date carefully, but Im more than a little skeptical there is something in the pact act that limits your effective date of smc S.  Indeed, current regulations support SMC being awarded "when symptoms first began", NOT the date of application nor  the date of the Pact Act, nor the date of Joe Biden's favorite dogs birthday.  

I have seen VA hornswaggle the effective date each time I was awarded benefits, and each time, the appeals eventually showed the effective date listed was just plain bogus.  

Here are the actual effective date regulations, and I did not see "Pact Act" anywhere, did you?

aw.cornell.edu/cfr/text/38/3.400#:~:text=prev%20%7C%20next-,§%203.400%20General.,entitlement%20arose%2C%20whichever%20is%20later.

While its true, under 38 cfr 3.114, the "liberalization law" can limit benefits effective date, The regulations involving SMC have not changed with the PACT ACT.  

You were likely always eligible, Pact aCT or no pact act.  The Pact act did not change your effective date, IMHO.  

broncovet

It seems like I read somewhere that they can give you an effective date for the rule change. There was something in the PACT ACT where you had to file in the first year or two to get the date of the rule change. I remder everyone rushing to get there claims in by X date for that reason. I maybe wrong.

[Rattler]

Congratulations! 

Bluntly

[Bluntly]

2 hours ago, Rattler said:

Congratulations! 

Bluntly

Thanks a lot and much appreciated.

[john999]

Bradley V Peake is the touch stone for guys or girls who have TDIU plus a separate 60%.  I got that at least ten years ago with information from Broncovet if I remember correctly.  I had to file a claim for the "S"  because VA was not awarding it to me.  They called CUE on themselves and awarded it with two years retro.  VA put out info that only vets with 100% for single disability could get "S" which was wrong.

[broncovet]

Thank you for the affirmation, John.  Yes, I do recall posting about Bradley vs Peake, and, further, I had to appeal a denial of tdiu as the VARO said it was "moot".

In my appeal, I argued that TDIU was not moot, because an award of TDIU could result in SMC S, Under Bradley vs Peake, and, because it could also result in an EED.  

The board agreed with me, and specifically stated that "TDIU was not Moot" in its findings of facts.  Of course that applies to my case, not necessarily all tdiu cases.  

Further, the Board required the VARO to also adjudicate  38 cfr 4.16 B (extra schedular IU in case I did not meet the percentages found in 4.16 A.). 

Ultimately, I was awarded 4.16 b tdiu and an EED.  

Experience is a great teacher sometimes.  

 

[Tbird]

FYI: