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Va Fl 06-28
Posted 28 November 2010 - 04:31 PM
VA Fast Letter 06-28.pdf 76.81KB 17 downloads
DEPARTMENT OF VETERANS AFFAIRS
Veterans Benefits Administration
Washington, D.C. 20420
December 22, 2006
All VA Regional Offices and Centers
In Reply Refer To: 211A
Fast Letter 06-28
SUBJ: Hartness v. Nicholson
This letter contains guidance for adjudicating special monthly pension (SMP) cases where the veteran is 65 years of age or older.
On July 21, 2006, the U.S. Court of Appeals for Veterans Claims (CAVC) issued a decision in the case of Hartness v. Nicholson (2006). The veteran had been found entitled to non-serviceconnected disability pension benefits under the provisions of title 38 U.S.C. § 1513(a) based on being over age 65. He subsequently submitted a private medical report in support of a claim for SMP. He was determined to be 70 percent disabled due to loss of vision and entitlement to SMP was denied. The CAVC reversed a May 2004 Board decision affirming the denial and remanded the matter to the Board.
The CAVC determined that the Board erred because it failed to apply section 1513(a) when considering whether Mr. Hartness was entitled to SMP under title 38 U.S.C. § 1521(e). The CAVC held that "application of section 1513(a) results in the exclusion of the permanent-and-totaldisability requirement in section 1521(a) and (e) when considering whether a veteran 65 years of age or older is entitled to non-service-connected disability pension." The CAVC interpreted section 1513(a) as requiring an award of SMP to a wartime veteran "if, in addition to being at least 65 years old, he or she possesses a minimum disability rating of 60 percent or is considered permanently housebound as defined under 38 U.S.C. § 1502©."