Negatory, Loyal. Look at it like this. You have everything you need for SMC S but they fail to grant. In the new VBMS world, you have to go through a generated 526EZ claims portal (Janesville), to be read into the system. Face it. If you’re going to Hell, you’ll have to go through Janesville. You can thank Rep. Paul Ryan, the Speaker of the House for that. It’s his home town. He made VA to put it there. After they discover you’re right, they grant SMC but probably effective the day the claim was filed. We’re talking a horribly poor computer program. You must then file the 0958 NOD (Janesville, of course) asking for the EED for the system to “see” the NOD. That generates an auto reply saying they got it (eBennies or by USPS). A year or two later, you get in the queue for the OK corral DRO hearing/ Review to sort it all out. This is what is called a “reconsideration” by the VA. But remember, even then it can never be CUE because the seminal test for CUE is always a decision that is final and the suspense date for a substantive appeal has expired. SMC is awarded “at such time as the preponderance of the medical evidence dispositively proves the entitlement”. As such, a failure to award it is a brain fart, not a CUE. The failure to grant the proper EED is not a CUE but merely a failure to read the regulation in a liberal nonadversarial fashion and if the evidence is in equipoise, the higher of the two ratings will be awarded. CUE is a road less traveled for good reasons. Why go there when you can use the regs as written to accomplish the same thing using 2017 technology? Don’t overthink it. VA law is horribly simpler now and does favor us if you learn how. I just saw a VSO using a 21-4138 form to file a new claim at the Vet Center last week. With a ball point pen. I went in with a client to get their files. The VBMS system cannot read a 4138 even if it’s typed. It’s not “VBMS-friendly” with little boxes for the letters. As of now, there is no specific form to file for anything- even CUE -without using a 526 EZ.
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