SMC S Inferred

[emcsquared]

Newbie but long-time lurker here. Back in 2013 awarded TDIU P/T due to CAD/Diabetes/Peripheral Neuropathy/Tinnitus etc. Fast forward to January 2023 had a cardiac arrest hospitalized for supraventricular tachycardia and in March 2023 an AICD was put in place. December 2023 filed an Intent to file and a claim for an increase and was awarded 100% schedular with SMC S effective date based on Intent to file (Dec 2023).

Question I have is. was the proper SMC S effective date applied? The VA and VSO both say the Intent to file date applies. Researching I find the following in 38 CFR.

7011 Ventricular arrhythmias (sustained):For an indefinite period from the date of inpatient hospital admission for initial medical therapy for a sustained ventricular arrhythmia; or, for an indefinite period from the date of inpatient hospital admission for ventricular aneurysmectomy; or, with an automatic implantable cardioverter-defibrillator (AICD) in place.

Can anyone tell me if I am entitled to SMC S back to January 2023 when initially Hospitalized or is the Intent to file date the end all be all. Thanks in advance.

 

[broncovet]

Welcome to hadit..  

     I think I have good news for you, but, I must qualify that with "I really dont know" because I have not reviewed your file, and, it will ultimately depend on the facts of your case, NOT by my rather uninformed opinion, having not seen your case.  

    With the caveat above, BUIE (see link below and apply it to your case) essentailly confirms that you are entitled to SMC "not" based on the filing date, but rather when you first became eligible, since VA has a duty to pay SMC when you become eligible.  

Last I checked, its not your fault VA did not do their job!  The date of claim (or date of ITF) is not releveant in SMC as far as an effective date, confirmed by BUIE..  

Quote

Its not unusual for VA and VSO's to deter you from actively persuing ALL the benefits to which you may deserve, altho expect them to deny that adamantly.  I have actually personally experienced VSO's and VA employees saying stuff like, "Gee you are already at 100 percent, and you cant get more than that".  (False..SMC is higher than 100 percent, in some cases about triple the amount). 

     PERSONALLY, the VA declared TDIU in my case "moot", and didnt bother to adjuticate it.  I appealed, arguing that "TDIU was NOT moot" because it could result in either an earlier effective date, OR eligibiility to SMC S, IF AWARDED.  The board agreed with me, and remanded for VA to adjuticate tdiu INCLUDING extra schedular tdiu.  (Extra schedular tdiu is when you dont meet the "normal" percentages found in 38 cfr 4.16 A.  

    I ultimately won TDIU and SMC S, "even tho" VA raters formally declined to "even adjuticate" tdiu falsely alleging it was "moot".  My board decision even went on to specifically state their "finding of fact" that "TDIU was not MOOT".  Now, this is a board decision and non precedential, but it is on point and informative.  

     

Buie should settle this  issue:

https://www.courtlistener.com/opinion/817345/buie-v-shinseki/

My advice is to appeal your effective date, probably to the BVA.  Or you could even try filing cue, because that is error.  (again, however, it. depends on facts in your case and IDK them.). 

If this were my claim, I would review the cfile, and most likely file a CUE, citing both Buie, and 38 CFR 4.6 alleging VA violated both of these, highlighting specific parts of these which should remove any doubt the VA was erroneous with the effective date.  

I probably would file CUE first, but I would make sure I filed the NOD within one year, no matter what.  

38 cfr 4.6:

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§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

In short, I agree with you, and dispute the VA and VSO's position.    Your case screams:

BUIE< BUIE< BUIE.  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!VA MUST APLLY BUIE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

One thing I dont know:  Whether you should repesent yourself or get a lawyer from NOVA:  https://www.vetadvocates.org/directory/widget_search?current_page=1&sort_type=featured&filter={"additional_info.show-profile-on-sustaining-membership-directory"%3A+"yes"}&asset_type=company_user&display_type=default

At this point, I would file cue and November 2024 or earlier also file a NOD.  But I would also contact an attorney from the list above, and get their opinion.  It costs you nothing for them to review your case and offer an initial opinion, and THEN you can decide if you want to hire the attorney.  (Dont expect too much of your VSO, tho.  He has already shown you his "colors" and that color is "Veteran unfriendly" or, perhaps uninformed, incompetent, or just plain lazy. ).  

 

Edited July 3 by broncovet

[emcsquared]

Thank you broncovet for your reply and advice. This advice and other information  contained  on/in hadit has helped me greatly in my dealings with the VA. Will keep everyone advised as to the outcome. Thanks again !!!

[relatively happy camper]

You stated that SMC-S was inferred, at some point. Was it denied in 2013?  Was there any mention of it in the 2013 decision?  I would look back to that decision.  The SMC-S, if not discussed in the 2013 decision may still an open claim.  jmo

[broncovet]

SMC is always inferred, and your effective date should always be "when you first meet the applicable criteria".  However, VA does not always or even often, get the effective date correct.  I have been awarded benefits on at least 3 seperate decisions, all had the wrong effective date, where I eventually won back pay.