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Starting to think the effective date for smc benefits is a cue
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Question
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.
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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:
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
pacmanx1
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 is
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