Effective Date for SMC S?

[jdman]

I was told by my DAV Rep that my claim for Major Depression increased to 100% and I qualify for SMC S Homebound status. When is the effective date of this? When the claim was filed or when the condition worsened to award me 100%. 

[Dustoff1970]

NORMALLY is the later of the two dates that is claim file date or date condition worsened. 

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Edited January 22 by Dustoff1970

[pacmanx1]

4 hours ago, Dustoff1970 said:

NORMALLY is the later of the two dates that is claim file date or date condition worsened. 

Actually, SMC payments are based on the record and is the opposite and is as soon as the veteran meet the criteria. Your post is correct about normal effective dates, but SMC payments fall in a different category, and they are not considered normal effective date payments.  

See Buie v. Shinseki.  

Edited January 22 by pacmanx1

[broncovet]

Regular claims:  YOur effective date is the later of the claim date or facts found, with some exceptions.

SMC:  Since its always inferred, you should not have to file a claim for smc (even tho we often do).  Therefore, the 

claim date (date filed) does not limit  the effective date for smc.  

However, consider the following example:  

You file for benefits on June 1, 2002, and are awarded 40 percent.  You file for an increase AND file for sleep apnea on June 1, 2014.

You eventually are awarded the benefits you sought at increase, and, that increase qualifies you for 100 plus 60 smc s. 

The smc s, would be the same effective date as the 2014 increase because that would be the date you met the criteria

for smc s, "provided that" the facts found supported a 2014 effective date for your increase.  

But read here, an INCREASE can mean you get up to a year earlier date:

https://www.law.cornell.edu/uscode/text/38/5110

Specifically, 

Quote

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

There are many other exceptions to the general rule (later of claim date or facts found), so read these

to see if you qualify.  In addition to those listed above, 38 cfr 3.156 can render an eed, if you submit 

new and relevant evidence to a pending claim, or, if new service records are found.  

If you think you may be eligible for an eed, you can send your decision to a competent nova attorney who 

may be able to help you.  

I won eed's on virtually every claim VA awarded, as each time they got the effective date wrong.  But it was a long fight. 

Effective dates are complex, and require a thorough review of your file to know if you qualify for an eed.  We have not done that, so we cant say for sure.  

Edited January 22 by broncovet

[Lemuel]

Which means my effective date will depend on when my nursing home care began, not on when the delayed primary care physician wrote the consults for assessment.  So will put in a supplemental appeal with billings for care that community care paid.  Thanks for this information pacman and bronco.

[Dustoff1970]

For a great many years since 1998 I was rated P&T TDIU due to a single 70% PTSD rating.  Around 2014 to 2016 I received a 30% rating for Vietnam Agent Orange Heart disease.  Then on December 2021 I received a 50% OSA Sleep Apnea with CPAP rating that gave me a combined VA rating of 90 to 92% (VA math) with TDIU and the BVA also granted me automatically SMC-S with backpay to 2017 due to these additional ratings qualifying for SMC-S.

I was diagnosed with OSA Sleep Apnea in Sept of 2017 and filed my OSA claim on  December 6,  2017 and  the effective date of my Claim and automatic SMC-S award was December and not September.

 

 

Edited January 22 by Dustoff1970

[Lemuel]

8 minutes ago, Dustoff1970 said:

For a great many years since 1998 I was rated P&T TDIU due to a single 70% PTSD rating.  Around 2014 to 2016 I received a 30% rating for Vietnam Agent Orange Heart disease.  Then on December 2021 I received a 50% OSA Sleep Apnea with CPAP rating that gave me a combined VA rating of 90 to 92% (VA math) with TDIU and the BVA also granted me automatically SMC-S with backpay to 2017 due to these additional ratings qualifying for SMC-S.

I was diagnosed with OSA Sleep Apnea in Sept of 2017 and filed my OSA claim on  December 6,  2017 and  the effective date of my Claim and automatic SMC-S award was December and not September.

 

 

How about spouse's SMC.  Applied for Kazuko's but she passed before it could be decided.  Will raise the issue at the BVA for from her TBI in December of 22 until her death when her friend was taking care of her special needs and we were hiring help.  If granted going to give it to the friend.