About to fight for a new effective date for smc

[kidva]

So I have been looking to get a new effective date for my smc benefits. I ran across this case. Does this mean the effective date should be the effective date of the condition.

If, after such an assessment, VA determines that the claimant is entitled to special monthly compensation, the effective date of the award of special monthly compensation will be the effective date assigned for the award of benefits for the final disability that forms the relevant combination of disabilities. Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010), as amended (Apr. 21, 2011.

The thing is all the decisions I have search on bva site are all granted the date of claim. Am I missing something.

[pacmanx1]

 

 

I have been stating this for years, please read "the effective date of the award of special monthly compensation will be the effective date assigned for the award of benefits for the final disability that forms the relevant combination of disabilities."

The way I understand this is that if the VA decides to award a veteran back pay/retro payment SMC is payable when the veteran's rating meets the criteria without the veteran filing a claim. Under BUIE V SHENSEKI, which is a precedential decision and can be cited, the VA has a duty to maximize the veteran's benefits. Maximizing the veteran's benefits is totally different than maximizing the veteran's rating.  

Edited yesterday at 06:18 PM by pacmanx1

[pacmanx1]

 

Here is the part you left off of BUIE where it states that the VA is required to do the assessment to maximize the veteran's benefits. 

 

The Court has held that the order in which disabilities are service connected is not relevant to VA's determination of a claimant's eligibility for special monthly compensation under 38 U.S.C. section 1114(s).  Whenever a veteran has a total disability rating, schedular or extra-schedular, based on multiple disabilities and the veteran is subsequently awarded service connection for any additional disability or disabilities, VA's duty to maximize benefits requires VA to assess all of the claimant's disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to special monthly compensation under section 1114(s).  If, after such an assessment, VA determines that the claimant is entitled to special monthly compensation, the effective date of the award of special monthly compensation will be the effective date assigned for the award of benefits for the final disability that forms the relevant combination of disabilities.  Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010), as amended (Apr. 21, 2011).

[kidva]

I think I am going to try.  There is also this cases. I think will be helpful.

SMC benefits are to be accorded when a veteran becomes eligible without need for a separate claim and appeals Bradley v. Peake, 22 Vet. App. 280, 294 (2008).

 

 SMC may also be considered part of a claim for increased compensation. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (concluding that the Regional Office “should have inferred from the veteran’s request for an increase in benefits . . . a request for [SMC] whether or not it was placed in issue by the veteran”); see also Hassan v. McDonough, No. 20-2556 Vet. App. LEXIS 460 *5 (March 19, 2021) (“The Secretary further concedes that because SMC is an issue within an increased rating claim, the Board should have considered whether the appellant filed a claim for an increased disabilities.

 

 

[broncovet]

Go for it.  Of the 4 times I got an award of benefits, 100% of the effective dates were wrong.  I appealed 3 of them and eventually won them all, tho VA "Threw everything at me including the kitchen sink" to try to deny it.  Since I know VA regurarly does bogus denials, I weaved through them all and did not give up and won.  The 4th award, was also wrong effective date, but that was moot when I won the other 3.  

Hornswaggling the effective date is "the VA's last try" to give you less than you deserve.  

1.  Bogus delays and denials, including glitches of all kinds. 

2.  Lowball the percentages.  

3.  Forget some of the claims and never adjudicate them at all.  This one is irksome, as "how do you appeal a denial that was never adjuticated?"  The CAVC calls it a deemed denial.  While the CAVC severely limited deemed denials, they still keep happening.  In a nutshell, if you have 4 cliams pending, and the vA adjuticates 3, the other one was a deemed denial, and the appeal period begings to run.  It flies in the face of 38 CFR 3.103, which states, in relevant part:

Quote

§ 3.103 Procedural due process and other rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

 

[Tbird]

Key links related to the Bradley v. Peake case and its implications:

1. Full text of the Bradley v. Peake decision:
   Bradley v. Peake, 22 Vet. App. 280 (2008)
2. 38 U.S.C. § 1114(s) - Statute outlining requirements for SMC at the housebound rate:
   38 U.S.C. § 1114(s)
3. 38 C.F.R. 3.350(i) - Regulation interpreted to permit TDIU rating based on a single disability to satisfy the § 1114(s) requirement:
   38 C.F.R. 3.350(i)
4. VA's M21-1 Manual - Contains guidance on how to apply the Bradley decision:
   M21-1, Part IV, Subpart ii, Chapter 2, Section H - Special Monthly Compensation
5. Veterans Benefits Administration (VBA) Fast Letter 09-33 - Provides guidance on implementing the Bradley decision:
   VBA Fast Letter 09-33

[relatively happy camper]

Go for it!!!  It took me 31+yrs but I won SMC 31 yrs retro.  I recommend never accepting their decisions.  jmo