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]

 Unless I've been reading it wrong kidva is receiving SMC but is seeking an earlier effective date(EED).  There are a few ways to attack the EED and CUE is one.  kidva has to realize the VA does whatever they feel like.  These are lay people making the decisions.  BVA usually only looks at the low hanging fruit, like many attorneys.  It can take many yrs to get the proper decision.   Took me 10yrs to win 100% and 31yrs to win SMC, both all the way retro to original claim date.  If I'm wrong on anything, please feel free to correct me.

[kidva]

Yes I was awarded smc s but the date I apply. The VA will only address 100/60 smc. Not the housebound by fact in my case.

Yes the VA does what ever it feels don't say that to loud. My case is with the bva judge 2 weeks now. So we will see what they come up with.

[broncovet]

Not all errors are CUE.  There are many which are not CUE.  The regulation you cited used the term "MAY".  More than once, VA has rejected "may", "maybe", "might", etc as speculative.  I "may" win the lottery.  

Feel free to file CUE if you like.  We have had a somewhat similar discussion on hadit in the past.  While it may take way too long to look it up again, the general consensus was/is to file CUE "only when" you cant file a regular appeal, such as you waited too long and the appeal period expired.  

Remember, CUE is a "standard of review", which deletes the benefit of doubt and must be so clear reasonable minds can not differ.  And, in the regulation (Akles) above, the term "may" does not mean its mandatory for VA to do this, it means they might do that.  It would be much stronger if they said "shall" or "will" do this.  Will or shall implies its mandantory, may implies the VA has discretion on whether or not to perform the suggested principle.  

AKLES, Hassen, etc that you cited are not "regulations" per se, they are that courts interpretation of regulations which apply to that particular case.  While precendtial decisions are broad and far reaching, the VA could/will cite case law which supports their view point.  This is why I stay away from CUE when an appeal will do.   

My advice is go ahead and try the cue, but dont neglect to appeal also.  

I mean I get it.  The appeals process is very long and we dont want to wait for a 4 year board approval.   However, there is a trucking company where their motto is "there are no shortcuts".  

Its your claim, and a judgement call.  Im not trying to be argumentive, to the contrary Im trying to help..  

I was looking back at decisions and I probably have had more than 20 decisions.  Some went in my favor, but more than 50 percent were denied, and this is consistent with what others told me.  That percentage goes way down with CUE, unless you are our former CUE expert, Berta.  The only Cue I filed was denied.  

And law firms rarely tackle them.  

Indeed, IM INVOLVED with a situtaition where I allege VA should have awarded additional SMC under 38 CFR 3.350 "additional 50 % ratings".  I have a call in with a well known law firm, and Im waiting on their opinion.  My choices are:

1.  Ignore it and setlle for what I consider less than I deserve.  I reject this.  

2.  File a Supplemental claim, asking for the benefit, willing to add an IMO/new evidence as needed.  And, appeal this if denied.

3.  File CUE alleging the VARO did not comply with Akles "may".  

     Im favoring number 2, but will see what the lirm suggests, and, whether or not they accept my case, and, I will ask them how they plan on doing it.  I may have their answer in a few weeks, I have submitted decisions for their review.  IDK how long it will take them to provide an answer, if they ever will.  

[kidva]

Yes we all have are way of fighting for our benefits and there are many ways to fight it's the veterans choice on how they attack there issue. But the best way to win your benefits is to educate yourself.

Because we all understand that lawyers accept the cases they want to. An some vso aren't more educated then some of us that post on the web. Sometime you have to fight for yourself.

I started with applying for smc benefit because it was inferred or address and I have been permanent and total for 15 years. They were granted after One cavc remand and 2 nd trip to bva. An still the law isn't been address and the proper effective date isn't been address.

So after trying this and looking at there decisions I feel the best way to fight the VA for smc benefits when they weren't inferred or address in a increase rating decision.

Is to cue the old increase rating decisions were it should have been granted or inferred and fight with the law.This way they have no choice but to address the law.

Or you will be going in circle try to get them to address the law after the smc is granted. They don't want to address retro for these case do to there errors.

My opinion 

 

[Tbird]

On 10/19/2024 at 1:34 PM, kidva said:

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.

 

 

 

 

 

 

 

 

 

 

 

this is what happened on my recent win for an increase in my SMC, they looked back at a Feb 2024 decision, called a CUE on themselves and granted me the increase to Feb 2024. L 1/2 to M, I put in a Higher Level Review because they way I read the law I should be M 1/2. I have my informal conference tomorrow morning. I've never had claims move this fast before.

[relatively happy camper]

8 hours ago, kidva said:

Yes I was awarded smc s but the date I apply. The VA will only address 100/60 smc. Not the housebound by fact in my case.

Yes the VA does what ever it feels don't say that to loud. My case is with the bva judge 2 weeks now. So we will see what they come up with.

The inferred issue is what I finally won on.  It had probably been to the BVA 3 or 4 times and at the court twice & two EAJA lawyers.  The final time at the BVA the judge made the correct decision.  I was going after the 100+60 using regular addition, not the ratings table.  They seem to always award rather than address the ratings table issue.  My main thing was they were still using the ratings table and penalizing the claimant who was already 100% rated.  I ended up winning on the inferred issue.  Just don't give up, you can win in the end.  I was about to give up, when I won.   jmo