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.

 

 

 

 

 

 

 

 

[Vync]

It's a shame the VA doesn't consider all medically documented claims to have effective dates like how SMC inferred claims. In my opinion, I think that ALL claims should have effective dates based on either the date the veteran met the criteria or the date they filed, whichever is earlier.

[kidva]

I think the problem is the VA like to address the law when it feels. You can write the law in a statement and they still will not even address your statements.

It's getting so bad that veterans are have to go the cavc 2 3 times and they still don't address the case properly.

my opinion is they do it on purpose. An hope veterans give up or die.

I feel the contractor Comp exams are been used to delay and develop to deny claims and appeals. Veterans are having 4 5 exams during there claims and appeals for the same condition.

When they had to send you to a VA hospital for  Comp exam. it didn't go back 4 5 times. the va hospital didn't hold the report for weeks. An you can get a copy. An you think this isn't been done purpose.

Reading some of the old post on here all Comp exams weren't to be sent to contractors only if  the veteran didn't live around a VA hospital. Veterans are traveling hrs for a Comp exam when they live 15 min from hospital. 

If I remember right a lot of the Comp examiner at the VA hospital would come There to do exams. Now we travel I don't think it is helping the process my opinion.

 

[relatively happy camper]

I agree they do it on purpose.   Just so you know they may deny the CUE claim based on the fact that it's still an open claim/issue.  I'd still go for it, tho!!!   jmo