ANYONE GOT CITATIONS THAT SAY FAILURE TO MAXIMIZE IS CUE

[Otrgypsy]

Thanks to an anwer to my latest questions I just woke up to how the RO screwed me out of SMC-S. Due to my CNS issues (and all the boiler plate bullshit they fill decisions with), I never realized until tonight that they granted my claim for TDIU based in part on their verbal garbage saying that TDIU is based on my 70% CNS and all my other disabilities. The only problem with this is I have 4 or 5 separate legitimate medical opinions saying the CNS disability renders me unemployable. It is true the other disabilites render me further unemployable, But none of those are rated above 50%.  One or two medical opinions medical say that my sleep disorders with or without chronic fatigue are serious enough to render me unemployable without regard to cns issues.

HOW CAN THEY USE GREATER DISABILITY TO DENY SMC-S?????

[relatively happy camper]

For a while, (I'm fairly sure it was the early 90's), there was 4.16(c), which if I remember correctly was discontinued in '96, where if you were rated 70%, strictly for PTSD, they were required to award the claimant a 100% rating.  I think it only lasted a few yrs.  The VA sometimes doesn't state total & permanent (commonly called P&T) but do mention whether your dependents are Chap 35 and ChampVA eligible, which means you are P&T.  Those added 2 benefits are worth pursuing.

[broncovet]

Who, hoss!  While you COULD (possibly) crawl across America on your hands and knees, flying in an Airplane would be much faster and easier.  

In a similar way, you COULD file CUE on SMC S, but when you understand that filing CUE is "all about the effective date" AND, the filing date does not matter with SMC, simply file for it again.  If awarded, your effective date for SMC S, should be the date you first became eligible for it.  

Its well known that CUE is harder to prove than a simple claim for ONE major reason:

CUE must be undebatable

While regular claims a tie goes to the Veteran, that is, the doctrine of equipose.  (The benefit of the doubt goes to the Veteran)

Why give up the benefit of the doubt (BOD) when you dont need to?  

Dont make your claim harder than it needs to be.  Make it easier.  File for SMC S again.  No need to file CUE, it wont change your effective date.  Reason:

SMC is "inferred" whenever the Veteran meets the criteria.  That is, he should not have to apply for it.  Yes, the VA misses it and the Vet has to apply anyway.  But, if awarded, the Veteran should still get the same effective date. 

In a regular claim, the effective date is the later of the date of claim or the facts found (the date the doc said you became disabled to the extent of the criteria)

However, in SMC, you need not worry anout the "claim date"..its always the facts found, when you first meet the applicable criteria. 

Therefore, my advice:

File for SMC S (regular claim, supplemental claim form) and dont file CUE for SMC S, for reasons above.  

Edited April 8 by broncovet

[Rattler]

Good Post Broncovet.