Court: US Court of Appeals for Veterans Claims
Decision Date: 01/11/1991
Citation: Akles v. Derwinski, 1 Vet. App. 118 (1991)
Summary
The veteran sought an increased rating for service-connected left testicular atrophy after service-related mumps orchitis. The RO and Board denied the claim because the record lacked current clinical evidence, and no new VA examination was provided after the claim was reopened. The Court held that the Secretary had not fulfilled the duty to assist because a physical examination was necessary to determine whether the veteran met the regulatory criteria for compensation or special monthly compensation for loss or loss of use of a creative organ. The Court also held that VA’s nonadversarial adjudication system and its statutory duty to provide full information required VA to infer and consider special monthly compensation under 38 U.S.C. § 314(k), even though the veteran had not expressly raised that theory. The case was remanded for development of clinical evidence and consideration of SMC.
Core Legal Rule
When the record reasonably raises entitlement to special monthly compensation, VA must infer and develop that issue even if the claimant does not specifically identify it, and must assist by obtaining an examination needed to decide the claim.
Key Takeaway
Akles stands for the proposition that VA must look beyond the precise label a veteran uses and develop ancillary benefits reasonably raised by the record, especially SMC.
Why This Case Matters
The case is a foundational authority for inferred issues and ancillary benefits in the VA system. It is especially useful when VA denies a claim without addressing SMC or when the evidence suggests possible entitlement to SMC but the claimant did not specifically request it.
Common VA Error
Failing to infer and adjudicate reasonably raised special monthly compensation entitlement.
Example Scenario
A veteran files for an increased rating for a service-connected genitourinary disability, and the evidence suggests loss of use of a creative organ. VA denies the rating claim without considering SMC; Akles supports arguing that SMC had to be inferred and developed.
Strategic Use
Use Akles to demand consideration of ancillary benefits, particularly SMC, when the record suggests them even without explicit pleading. It also supports seeking a VA examination when current clinical evidence is needed to decide the claim.
Authority
Murphy v. Derwinski, Gilbert v. Derwinski