Starting to think the effective date for smc benefits is a cue

[kidva]

Ok the way I read the law smc is and inferred issue and should be address with increase rating decisions.

So if the veterans affairs didn't do this wouldn't it be a cue. Here is the law.

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 disability.

So if the veterans affairs didn't address smc benefits with a veterans increase rating tdiu decisions. Isn't that a cue?

Would the veteran have to cue the old increase tdiu rating decision. Because smc benefits wasn't address or inferred.

But than there is this I was granted smc s when I applied with the effective date the date of claim. When the law states this.

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.

This seem to stated that if the veterans affairs grants smc benefits the effective date will be the date of the increase rating decision.

I have a appeal that with the bva judge waiting on a decision Based on this. But the more I look at it I might have to cue the old increase rating decisions that are part of my record to get them to address that time period smc benefits.

An why it wasn't inferred by law. I think this is how the cue would be won.

The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. Robinson v. Peake, 21 Vet.App. 545,553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). This includes giving "a sympathetic reading to the veteran's filings by 'determining all potential claims raised

by the evidence, applying all relevant laws and regulations.'" Szemraj v. Principi, 357 F.3d 1370,1373 (Fed. Cir. 2004) (quoting Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)).

Relevant to this appeal, a claim for increased disability compensation may include the "inferred issue" of entitlement to SMC, even where the veteran has not expressly placed entitlement to

SMC at issue. Akles v. Derwinski, 1 Vet.App. 118, 121 (1991); see VA ADJUDICATIONS pROCEDURES

MANUAL REWRITE (M21–1MR), pt. III, subpt. iv, ch. 6, § B(3)(b)-(d) (designating SMC as an

"ancillary benefit" that is "derived from a [v]eteran's entitlement to disability benefits" and instructing the rating activity to consider SMC whenever "there is a severe degree of disability involving," inter alia, "the loss of use of an extremity"). The Court has jurisdiction to review

whether an issue was reasonably raised by the record and whether the Board erred in failing to consider that issue. Barringer v. Peake, 22 Vet.App. 242, 244 (2008).

In Akles, the Court held that "[t]here is no requirement in the law that a veteran must specify with precision the statutory provisions or the corresponding regulations under which he [or she]

is entitled to benefits." 1 Vet.App. at 121. The Court explained that such a requirement would be contrary to the "non-adversarial" nature of the veterans benefits system and VA's duty to develop

veterans' claims to ensure that they receive the maximum benefits allowable under the law. Id.

Accordingly, the Court concluded that the Board had erred in not "inferr[ing] from the veteran's request for an increase in benefits involving a request for [SMC] whether or not it was placed in issue by the veteran.

 

This all means if the veterans affairs didn't address smc benefits with a veterans increase rating decisions. It's a cue and error I believe.

 

 

 

 

 

 

 

 

[relatively happy camper]

The smc issue should go back to the original 100% or TDIU award date unless there is contrary evidence.  jmo

Edited October 19 by relatively happy camper

[pacmanx1]

Quote

I have an appeal that with the BVA judge waiting on a decision Based on this. But the more I look at it I might have to cue the old increase rating decisions that are part of my record to get them to address that time period SMC benefits.

As always, your claim, your decision, but I would say before you go filing a new claim/appeal, is let your current BVA decision go through. It is a chance that the BVA will catch it and correct the issue. Please don’t get me wrong, if the BVA does not catch the issue you can definitely file a new claim/appeal, but it does not have to be a CUE Claim.

CUE Claims are specific and are harder to win if you are not familiar with their rules and criteria, it is just as easy to simply file an appeal once you get your new decision and you still disagree with it. In fact, there are many lawyers that will take your claim free PRO BONO and charge the government under the EAJA Act.

Since the current issue is before the BVA, if you disagree with their new decision,  you can simply file an appeal to the Court of Appeals for Veteran’s Claims (CAVC) and hire an attorney free of charge and let the EAJA pay for it and get a Joint Motion Remand or a Joint Motion Partial Remand (JRM or JMPR) which is a lot faster because they are taking about six to nine months (6 to 9 months) and some new supplementals and HLRs are taking up to a year and getting a quick denial.

Either way you may be in luck, under Buie VS, Shinseki, it states that the VA has a duty to maximize the veteran’s benefits and that means after assessing or reviewing the veteran’s records the VA should give the veteran the benefit of doubt and award the veteran the maximum benefit when the record supports the higher (rating) benefit. Keep in mind that with all CUE Claims, the veteran loses his/her benefit of doubt because that is part of the CUE criteria.

[kidva]

I am going to wait for the bva judge to make a decision on the effective date. An see if they address the issue and law this time.

 

 

[Tbird]

FYI:

Special Monthly Compensation (SMC) is generally considered an inferred issue that should be addressed as part of increased rating claims.

The key legal precedents supporting this are:

 

• Akles v. Derwinski, 1 Vet. App. 118 (1991) - Established that SMC should be inferred from requests for increased ratings.
• Hassan v. McDonough, No. 20-2556 (Vet. App. 2021) - Confirmed that SMC is part of increased rating claims and should be considered by the Board.
• Buie v. Shinseki, 24 Vet. App. 242 (2010) - Addressed effective dates for SMC awards.

Other legal principles:

• Robinson v. Peake, 21 Vet. App. 545 (2008) - Requires the Board to consider all theories of entitlement raised by the evidence.
• Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004) - Emphasizes sympathetic reading of veterans' filings.
• Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) - Established the duty to maximize benefits.
• Barringer v. Peake, 22 Vet. App. 242 (2008) - Confirms the Court's jurisdiction to review whether issues were reasonably raised.

If the VA failed to address potential SMC entitlement when adjudicating increased rating or TDIU claims, this could potentially constitute a clear and unmistakable error (CUE). To pursue this, you would likely need to file a CUE motion against the specific rating decision(s) that failed to consider SMC. Regarding effective dates, Buie v. Shinseki indicates that the effective date for SMC should be the date of the disability award that forms the basis for SMC entitlement. However, this may conflict with the general rule that benefits can't be awarded earlier than the date of claim.

[kidva]

These are all good case my problem is getting the VA to address the law.

Regarding effective dates, Buie v. Shinseki indicates that the effective date for SMC should be the date of the disability award that forms the basis for SMC entitlement.

However, this may conflict with the general rule that benefits can't be awarded earlier than the date of claim.

This is were I am having the problem. The VA keep trying to address the date of claim. Nothing else.

This is why I say it might be better to do the cue of the old increase rating decisions. Because they will have no choice but to address the law and that time period.

If the VA failed to address potential SMC entitlement when adjudicating increased rating or TDIU claims, this could potentially constitute a clear and unmistakable error (CUE). To pursue this, you would likely need to file a CUE motion against the specific rating decision(s) that failed to consider SMC. 

Great! how you broke it down I will wait for bva decision if it's remand or denied I will start the cue and the court case.

 

Last thing you have to watch out for the VA trying to put in increases for the condition when you apply for smc benefits for the condition.

They will give a new increase rating decision for the condition and now that the effective date for smc benefits for that condition is date of the new increase rating decision.

You will not be able to fight the effective date.  They Try it with me when I apply for smc benefits not an increase rating. I withdraw the increase rating claim snd Explain I am applying for smc benefits not and increase rating on my condition. I believe they are well aware of the law on effective dates for smc benefits.

An I feel it might be a typing error on the pl 96-12 and pl 96-128 in the VA manual. So please disregard my post on it.

[broncovet]

Just file for SMC.  (and not CUE).  Why?  Answer follows:

1.  Cue "unnecessarily" raises the standard of review making it harder for you.  Just file for SMC instead.  

2.  The effective date for SMC is "the first date you met the applicable criteria" and its not based on the date you apply.    There is case law for that, but Im not finding it for you tonight.  

3.  Filing CUE is "all about" effective date, and its largely irrelevant because of the above.  So, just file, and keep your benefit of the doubt.  I dont give up my "benefit of the doubt" unless there is no alternative or there is a compelling reason.  Again, since the "date of claim" is not relevant for SMC, then you can apply anytime and get the same effective date as if you applied years ago, its all dependent on when the doc says you meet the criteria.  

4.  Winning VA claims are challenging enough, you dont need to make them harder by filing cue, because its a higher standard of review than a regular benefit of the doubt claim.