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Bva Denied My Smc For 100% + 60% "s" Award . . .


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#1 Philip Rogers

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Posted 08 March 2012 - 05:03 PM

I've kinda been expecting it! I even explained about the issue of using the "combined ratings table" illegally and enclosed reference to a BVA decision. So I'll be filing my appeal to the CAVC next week. I'm rated 100% + 20% + 10% + 10% + 10% + 10% which should be added together, for the needed 60%. Guess we need the CAVC to clarify the rule.

pr

Edited by Philip Rogers, 08 March 2012 - 05:06 PM.


#2 john999

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Posted 08 March 2012 - 05:29 PM

Yep, the only way to find out is to take it to court. If you win or lose on the "combined ratings " issue for SMC that will clarify it for other vets.

#3 Wings

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Posted 08 March 2012 - 05:48 PM

I've kinda been expecting it! I even explained about the issue of using the "combined ratings table" illegally and enclosed reference to a BVA decision. So I'll be filing my appeal to the CAVC next week. I'm rated 100% + 20% + 10% + 10% + 10% + 10% which should be added together, for the needed 60%. Guess we need the CAVC to clarify the rule.

pr





PR, Maybe the Court has already decided the "issue" in the past; can you post the Reasons and Bases or some part of the Decision that will help me search for suppoorting case law? ~Wings

#4 Philip Rogers

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Posted 08 March 2012 - 08:28 PM

Wings, thank you!!! I'll post the reasons and bases, later tomorrow, as I don't type well and just the SMC reasons and bases section is 10 3/4 pages long. I believe it needs to go to the court as I've never seen any precendence cases and I think they settle and award, prior to the court addressing the issue. (jmo) They do address the issue of the ability to "leave the home to earn a living" as being part of the housebound issue. They also state my credibility is questionable, but I note it's only when it's favorable to me and not when it's favorable to them. I'm sure an attorney can pick this apart.

pr



PR, Maybe the Court has already decided the "issue" in the past; can you post the Reasons and Bases or some part of the Decision that will help me search for suppoorting case law? ~Wings



#5 carlie

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Posted 08 March 2012 - 08:56 PM

pr - sorry to read about this set back.

This "ain't" the last bite at this issue for you, but I think your
deadline is 120 days but am not positive right now.

I too am interested in the Reasons and Bases.

Carrie - over at Bergmann & Moore, has been VERY helpful
with all of my questions in the past.
There's a contact on the homepage if your interested.

#6 Berta

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Posted 09 March 2012 - 07:48 AM

Yes- and Jerrel told me Carrie might be doing a SVR show in the future on Bradley V Peake.

Yikes -I just remembered-

I think it is set for next week March 14th and he asked me to be on the show---I almost forgot!~

Flip- take them by the Goonyats on this one!!!!!!!!!!!!!!!!!!!!!!!!!!

Am I nuts or isnt this recent BVA decision from Steven D Reiss at BVA the same scenario as yours is?

Maybe you should ask the BVA by form of a Motion , to go CUE themselves!!!!!

Or ask for this specific law judge to re do your decision.

Or maybe the BVA had some valid rationale for the denial but I cant fathom what that involved.

Is the above the same BVA decision I posted the one you used to support your claim?









http://www.va.gov/ve...es5/1146258.txt

In Part:
“As detailed above, the Board awarded a TDIU, effective August 12, 2009, solely because the evidence of record, to include an August 2009 VA examiner's opinion, sufficiently indicated the Veteran's psychiatric symptoms are of such a severity that they alone produce unemployability. Accordingly, although PTSD has not been rated 100 percent disabling, for SMC purposes this disability satisfied the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Thus, at this time and given the absence of any evidence or assertion that he is permanently housebound, the Board determine if, since August 12, 2009, the Veteran's other service connected disabilities, separately or combined together, are ratable at 60 percent.



Since September 1, 2009, the Veteran's respectively service connected disabilities, other than PTSD, result in a combined 60 percent disability evaluation. For this period, combining the 30 percent disability evaluation for bilateral hearing loss; the 20 percent disability evaluation for a left ankle neurological disability; the 10 percent disability evaluation for tinnitus; the 10 percent disability evaluation for a left ankle orthopedic disability; and the 10 percent disability evaluation for a residual left ankle shell fracture wound scar, yields a combined 60 percent disability evaluation. Id. “

signed by
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

#7 jbasser

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Posted 09 March 2012 - 08:12 AM

We are planning to have Carrie on the show next week.

We hope to get some clarification as to why the VA uses the Combined rating schedule over and above 100 percent,

Once a veteran reaches 100 percent, or IU his residual value should be zero.

Go get em Flip. I am with you on this one.

Basser

#8 carlie

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Posted 09 March 2012 - 09:38 AM

Currently trying to figure out how to scan into my computer, so I can post.

pr


Sounds like lots of fun - wish I were there : -)

#9 Philip Rogers

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Posted 09 March 2012 - 12:08 PM

Here's the first six pages of the SMC reasons and bases section.

pr

Attached Files



#10 Philip Rogers

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Posted 09 March 2012 - 12:28 PM

Okay, here's the other 5 pages of the SMC reasons and bases.

pr

Attached Files



#11 Philip Rogers

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Posted 09 March 2012 - 12:39 PM

Berta - no, I don't think so. This guys added up to 80% using standard math addition and mine only adds up to 60% using standard math addition. The whole point is once you are 100% disabled they can't use the "combined ratings table," as it penalizes the claimant twice for the same disability(s). I believe it needs to go to the court. jmo

pr


Yes- and Jerrel told me Carrie might be doing a SVR show in the future on Bradley V Peake.

Yikes -I just remembered-

I think it is set for next week March 14th and he asked me to be on the show---I almost forgot!~

Flip- take them by the Goonyats on this one!!!!!!!!!!!!!!!!!!!!!!!!!!

Am I nuts or isnt this recent BVA decision from Steven D Reiss at BVA the same scenario as yours is?

Maybe you should ask the BVA by form of a Motion , to go CUE themselves!!!!!

Or ask for this specific law judge to re do your decision.

Or maybe the BVA had some valid rationale for the denial but I cant fathom what that involved.

Is the above the same BVA decision I posted the one you used to support your claim?









http://www.va.gov/ve...es5/1146258.txt

In Part:
“As detailed above, the Board awarded a TDIU, effective August 12, 2009, solely because the evidence of record, to include an August 2009 VA examiner's opinion, sufficiently indicated the Veteran's psychiatric symptoms are of such a severity that they alone produce unemployability. Accordingly, although PTSD has not been rated 100 percent disabling, for SMC purposes this disability satisfied the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Thus, at this time and given the absence of any evidence or assertion that he is permanently housebound, the Board determine if, since August 12, 2009, the Veteran's other service connected disabilities, separately or combined together, are ratable at 60 percent.



Since September 1, 2009, the Veteran's respectively service connected disabilities, other than PTSD, result in a combined 60 percent disability evaluation. For this period, combining the 30 percent disability evaluation for bilateral hearing loss; the 20 percent disability evaluation for a left ankle neurological disability; the 10 percent disability evaluation for tinnitus; the 10 percent disability evaluation for a left ankle orthopedic disability; and the 10 percent disability evaluation for a residual left ankle shell fracture wound scar, yields a combined 60 percent disability evaluation. Id. “

signed by
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals



#12 Philip Rogers

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Posted 09 March 2012 - 12:41 PM

Carla - I spoke to their intake guy and he advised me to wait for this decision. I'll be in touch with them, again, next week.

pr



pr - sorry to read about this set back.

This "ain't" the last bite at this issue for you, but I think your
deadline is 120 days but am not positive right now.

I too am interested in the Reasons and Bases.

Carrie - over at Bergmann & Moore, has been VERY helpful
with all of my questions in the past.
There's a contact on the homepage if your interested.



#13 Teac

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Posted 09 March 2012 - 04:55 PM

Philip,

I an not clear as to what smc you were requesting A&A SMC L, or Housebound SMC S, so I will address both SMC's.

Please keep in mind this is my opinion based on my prior expierence as a vso, and my own claims where I have been awarded housebound and then later A&A. My opinions are not always correct, and va decisions are not based on my opinions.

I read the reason for denial and the reasoning used to deny seems very clear.

They specifically state that statements made by you and your ex-wife are not creditable , when compaired to the other evidence in the case. but....

From what I read, you don't meet any of the single qualifications that would entitle you to A&A or housebound anyway.

You are able to bathe, cook, clean, take medications, leave the home alone, make long extended trips out of state, attend medical appointments without help, you drive or someone drives you and you do make trips alone or with a friend to the store or resturants. There wasn't anything in the denial that indicated you needed help to do any of the things that your can do. While it indicated your mother cooks for you at times or reminds you to bathe, it does not state you need help to cook or bathe. As such based on what I know about A&A your do not meet the qualifications of an award.

As to the additional 60%.

The 60% only comes into consideration for statutatory awards of Housebound SMC S, not A&A. The veteran must have a single permanent disability evaluated as 100-percent disabling AND, another disability, or disabilities, evaluated as 60 percent or more disabling. You additional ratings combine at 50% . At no time have I ever known the va to add disabilities ratings together they are always combined using the combined ratings chart.

I know that reasonable people can disagree on how the va should add/combine ratings above and beyond the 100% rating, but as you said unless the issue is decided in court the arguement for adding and not combining will be just that an arguement and the va will always win that battle.

Now as to an award of Housebound SMC S, either the veteran must have actually be housebound or be rated 100% plus have an additional seperate or combined rating of 60% or more. Based on the information in the denial you are clearly not housebound.

Now for A&A the veteran must be rated 100% and have shown an actual need for aid and attendance as outlined above. If a veteran shows an actual need, and has an additonal seperate rating of 50% or more his award for A&A would be at the L 1/2 SMC Level.

I don't like to agree with the va denials, but I really don't see a valid claim for either Housebound or A&A. Please, I am not saying the VA is correct, I am just saying I think they are correct, the va has been wrong before in other matters and can be wrong again.

I really hope that you achieve that which you set out to do, but I honestly don't see a valid claim based on what you have presented here. I really wish I could say otherwise, and I do wish you the best outcome possible.

(For what it is worth, if I added my disabilites together I would be at 250 so I wish the va did add and not combine because my A&A would be at a higher level than it is now.....)

#14 jbasser

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Posted 09 March 2012 - 06:13 PM

Teac We have been over this before.
Under Bradley V Peake the decision stated that a Vet who is considered IU is also eligible to be awarded SMC S.
You do not have to have a 100 percent schedular rating,
This is not Hadit's first go around with this issue.

The main question here is why the VA uses the combined rating schedule over and above 100 percent.
Once a Veteran reaches IU or 100 percent their residual should drop to zero. This is just another scheme the VA uses to Rip Off the veteran population.

On the other hand this issue will be decided at the court level once and for all.

If you really want a breakdown of Bradley V Peake, I suggest you listen to the Next Bergmann-Moore SVR show. We will break this case down and They will explain it in great detail.

Basser

#15 Philip Rogers

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Posted 09 March 2012 - 06:59 PM

Teac - thank you for your input and don't take it personally but I disagree, obviously, otherwise I wouldn't be pursuing it. I meet A&A just on the protection of oneself aspect. Additionally I need someone to remind me to take my meds. As for the HB issue, I have been unable to leave my house "to work," meaning 5 days a week, eight hrs a day, 40 hrs a week, for over 23 yrs. Just because someone eats out once in a while, attends medical appointments and picks up groceries, doesn't mean they aren't HB. The key word is "substantially" housebound which doesn't mean all the time but means frequently or for the most part.

I did note that we were not "credible witnesses," however, they accepted that I "allegedly stated that I was flying to NC to buy homes." First off, I don't fly, period. I had purchased a home, in NC, and was going there for the winter. Someone else drove me here. There are too many inconsistencies, in their reasoning.

Anyway, at this point it's about the 100+60. Thanks again for your input.

pr



Philip,

I an not clear as to what smc you were requesting A&A SMC L, or Housebound SMC S, so I will address both SMC's.

Please keep in mind this is my opinion based on my prior expierence as a vso, and my own claims where I have been awarded housebound and then later A&A. My opinions are not always correct, and va decisions are not based on my opinions.

I read the reason for denial and the reasoning used to deny seems very clear.

They specifically state that statements made by you and your ex-wife are not creditable , when compaired to the other evidence in the case. but....

From what I read, you don't meet any of the single qualifications that would entitle you to A&A or housebound anyway.

You are able to bathe, cook, clean, take medications, leave the home alone, make long extended trips out of state, attend medical appointments without help, you drive or someone drives you and you do make trips alone or with a friend to the store or resturants. There wasn't anything in the denial that indicated you needed help to do any of the things that your can do. While it indicated your mother cooks for you at times or reminds you to bathe, it does not state you need help to cook or bathe. As such based on what I know about A&A your do not meet the qualifications of an award.

As to the additional 60%.

The 60% only comes into consideration for statutatory awards of Housebound SMC S, not A&A. The veteran must have a single permanent disability evaluated as 100-percent disabling AND, another disability, or disabilities, evaluated as 60 percent or more disabling. You additional ratings combine at 50% . At no time have I ever known the va to add disabilities ratings together they are always combined using the combined ratings chart.

I know that reasonable people can disagree on how the va should add/combine ratings above and beyond the 100% rating, but as you said unless the issue is decided in court the arguement for adding and not combining will be just that an arguement and the va will always win that battle.

Now as to an award of Housebound SMC S, either the veteran must have actually be housebound or be rated 100% plus have an additional seperate or combined rating of 60% or more. Based on the information in the denial you are clearly not housebound.

Now for A&A the veteran must be rated 100% and have shown an actual need for aid and attendance as outlined above. If a veteran shows an actual need, and has an additonal seperate rating of 50% or more his award for A&A would be at the L 1/2 SMC Level.

I don't like to agree with the va denials, but I really don't see a valid claim for either Housebound or A&A. Please, I am not saying the VA is correct, I am just saying I think they are correct, the va has been wrong before in other matters and can be wrong again.

I really hope that you achieve that which you set out to do, but I honestly don't see a valid claim based on what you have presented here. I really wish I could say otherwise, and I do wish you the best outcome possible.

(For what it is worth, if I added my disabilites together I would be at 250 so I wish the va did add and not combine because my A&A would be at a higher level than it is now.....)



#16 Teac

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Posted 09 March 2012 - 07:01 PM

Teac We have been over this before.
Under Bradley V Peake the decision stated that a Vet who is considered IU is also eligible to be awarded SMC S.
You do not have to have a 100 percent schedular rating,
This is not Hadit's first go around with this issue.

The main question here is why the VA uses the combined rating schedule over and above 100 percent.
Once a Veteran reaches IU or 100 percent their residual should drop to zero. This is just another scheme the VA uses to Rip Off the veteran population.

On the other hand this issue will be decided at the court level once and for all.

If you really want a breakdown of Bradley V Peake, I suggest you listen to the Next Bergmann-Moore SVR show. We will break this case down and They will explain it in great detail.

Basser




Basser,

With all due respect,


I don't see anything in this thread in reference to bradley v Peake or anything that even required bradley v peak to be raised. Philip was not making any claims based on bradley v peake (was he) his claim is based on a 100% schedular rating. If he had raised bradley v peake I would have cited the requirements which are; TDIU awarded based on one 60% rating, and an additional seperate or combined rating of 60%.

Trust me, I am fully informed about bradley v peake and have posted many times concerning Bradley v peake, again this is one instance were I didn't think it needed to be addressed. I actually have an appeal pending concerning bradley v peake where the va failed to award me housebound when I was TDIU for my 60% back issue, and I had a seperate 60% award for asthma, ( this was prior to my now 100% + ratings) Houston has had my appeal for over a year.

I did however, state my opinion concerning ratings above and beyond 100% schedular ratings. It is my opinion the va never intended any rating to be added using normal math, regardless of how high a veterans rating is. There is nothing in any va rule, or regulation nor is there anything in law that states the va will drop residuals to zero when the veteran has received a 100% rating. As I said, reasonable people may disagree on this and perhaps the courts will have to decide the issue flat out. I wish the va would drop residuals to 0 after a veteran reaches the 100% rating, I would benefit greatly from such a ruling, but frankly I think it is just another reason ( in a long list of reasons) that some veterans use to appeal a denied claim and nothing more. Of course the va makes a lot of mistakes so who knows.....

#17 carlie

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Posted 09 March 2012 - 07:47 PM

It does seem pretty clear that this SMS/S issue will have to be decided
by the court - in regards to the additional 60 percent being figured by using the
VA's combined ratings versus independent, separately added NOT COMBINED
additional disabilities of 60 percent.

The reg does have the words,
Has additional service-connected disability or disabilities independently ratable at 60 percent

We can hash it out here all we want but ultimately this will be up to the court.

My question is why has the court ruled on this yet or has this issue hit the court level
by another claimant yet ?

#18 jbasser

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Posted 09 March 2012 - 07:55 PM

It does need to get to the court to be decided. Go get them PR. You have been a real asset to us here and we all appreciate your input on our issues. Your experience as a VSO and a friend are an asset to Hadit.

J

#19 carlie

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Posted 09 March 2012 - 08:33 PM

Also, I don't remember reading this part on the issue of SMC/S.


(i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s).
The special monthly compensation provided by 38
U.S.C. 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and,

(I BELIEVE BRADLY V PEAKE ADDED IU)


(1) Has additional service-connected
disability or disabilities independently
ratable at 60 percent, separate and distinct from the 100 percent service-connected disability
and involving different anatomical segments or bodily systems, or

http://edocket.acces.../38cfr3.351.pdf

What's the feedback on this ?

#20 Wings

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Posted 10 March 2012 - 07:46 AM

Teac We have been over this before. Under Bradley V Peake the decision stated that a Vet who is considered IU is also eligible to be awarded SMC S. You do not have to have a 100 percent schedular rating, This is not Hadit's first go around with this issue. The main question here is why the VA uses the combined rating schedule over and above 100 percent. Once a Veteran reaches IU or 100 percent their residual should drop to zero. This is just another scheme the VA uses to Rip Off the veteran population. On the other hand this issue will be decided at the court level once and for all. If you really want a breakdown of Bradley V Peake, I suggest you listen to the Next Bergmann-Moore SVR show. We will break this case down and They will explain it in great detail. Basser


JB, You nailed it!! ~Wings

#21 Teac

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Posted 10 March 2012 - 08:23 AM

Carlie, Bradly (dealing with issues of TDIU) is not applicable to to PR's decision as he is already 100% +60%.


Wings,

I agree TDIU is not an issue here, but as to being 100 + 60... that is a matter of opinion since Philip's 60% only combines to 50% and there is nothing in any va law, rules or regulation that states to drop the residuals to 0 once a veteran is rated 100% and to add the additional disabilities instead of using the combined rating tables. I sincerely hope that the issue is decded in his favor, but I just don't think the BVA or Court of Veteran Appeals will agree with this newest idea/arguement.

Edited by Teac, 10 March 2012 - 08:25 AM.


#22 Berta

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Posted 10 March 2012 - 09:59 AM

I think I was the one who first brought up Bradley in this thread - so I will take the heat on that-

and actually we have beaten that dog to death here already in past discussions on this case.

Since Carrie is doing a show this Wednesday , whether on Bradley V Peake or SMC in general it would be good to pose the question to her as to the additional 60 % disabilities and the proper way VA is to consider them regarding SMC S.

However I need to comment on your actual decision Philip because

I was hoping the VA would have awarded a higher level of SMC posthmously when they awarded my CUE claim last month.

The evidence they used certainly made enough sense that I can live with it but then again I might appeal the award....

They awarded S under Section 1151 but didnt go to a higher level with rationale such as "the veteran can button his clothes" TRUE I told them that.But he could not tie his shoes.They overlooked that.
Althugh they granted on upper and lower extremity weakness, they failed to consider how dificult it was for him to even bend over.
He also could not tell hot from cold due to the 1151 stroke ,requiring me to check his shower water and also stay in the bathroom with him so he didnt fall while in the shower due to his muscular weaknesses.He even would slip sitting on the shower chair due to SC balance problems.

When the VA put him into the 21 day inhouse program, he got lost on a field trip, due his his multiple SCs and didnt shower for 21 days because he couldnt tell hot from cold and they have no shower accomodations like the shower seat and metal hand handles he needed.
I was present when a VA doctor asked him hw far he could walk.

VA told me he would never walk again so any type of walking was quite an accomplishment for him and he learned to walk again himself with minimal VA rehab.

The C & P doc said Can you walk 3-4 blocks? and he said Yes and missed my gesture that this was wrong. I should have spoken up. He could walk only about 200 feet without extreme fatigue and leg weakness.

I asked him why he said Yes and he said he could not recall what a 'block' was due to his SC memory loss.We live in the country-no 'blocks' here.

He was a danger to himself and to others. They ignored evidence regarding that.

In any event my long point here is, the S award requires proof of being housebound.

In your case, they could have overlooked evidence that might have altered their opinion. They sure did in my claim. I just noticed more mintes ago because I wanted to see exactly how they determined the S award posthmously.

Has anyone ever diagnosed you with agoraphobia? Did VA rely on past information but not consider your current status might require S even if the older stuff didnt?

I agree that this is a case for a lawyer. And Carrie ,as a lawyer herself, might be able to clarify the 60% Issue for SMC S on the next SVR show.

Edited by Berta, 10 March 2012 - 10:03 AM.


#23 Wings

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Posted 10 March 2012 - 04:18 PM

Wings, I agree TDIU is not an issue here, but as to being 100 + 60... that is a matter of opinion since Philip's 60% only combines to 50% and there is nothing in any va law, rules or regulation that states to drop the residuals to 0 once a veteran is rated 100% and to add the additional disabilities instead of using the combined rating tables. I sincerely hope that the issue is decded in his favor, but I just don't think the BVA or Court of Veteran Appeals will agree with this newest idea/arguement.

x
x
x

I have to read the files PR has uploaded, because as read 38 CFR 3.351, it is an EITHER OR regulation: either 100% plus 60% Or "substantially housebound" --you do not need to meet a + b, just one or the other. ~Wings

P.S. I would claim entitlement under 38 CFR 3.351(d)(2), holding that the plain meaning "substantially confined" does not require 100% confinement. I would cite Roberson v. Principi (Fed. Cir. No. 00-7009. May 29, 2001), "Roberson asserts that the Court of Appeals for Veterans Claims misconstruedsubstantially gainful occupation” to mean “100% unemployable.” Roberson bases his allegation on the court's statement that “there was sufficient evidence of record at the time of the RO's January 1984 decision to reasonably conclude that the veteran was not 100% unemployable.”  Roberson v. West, No. 97-1971, slip op. at 6. Roberson asserts that the plain language of the regulation does not require the veteran to show 100 percent unemployability in order to prove that he cannot “follow substantially gainful occupation.”   We agree."



38 CFR 3.351 Special monthly dependency
and indemnity compensation, death
compensation, pension and spouse’s
compensation ratings.

(d) Housebound, or permanent and total
plus 60 percent; disability pension. The
rate of pension payable to a veteran
who is entitled to pension under 38
U.S.C. 1521 and who is not in need of
regular aid and attendance shall be as
prescribed in 38 U.S.C. 1521(e) if, in ad-dition to having a single permanent
disability rated 100 percent disabling
under the Schedule for Rating Disabil-ities (not including ratings based upon
unemployability under § 4.17 of this
chapter) the veteran:

(1) Has additional disability or dis-abilities independently ratable at 60
percent or more, separate and distinct
from the permanent disability rated as
100 percent disabling and involving dif-ferent anatomical segments or bodily
systems,

or

(2) Is ‘‘permanently housebound’’ by
reason of disability or disabilities. This
requirement is met when the veteran is
substantially confined to his or her
dwelling and the immediate premises
or, if institutionalized, to the ward or
clinical area, and it is reasonably certain that the disability or disabilities
and resultant confinement will continue throughout his or her lifetime.
(Authority: 38 U.S.C. 1502(c ) 1521(e))

Edited by Wings, 11 March 2012 - 12:10 PM.


#24 carlie

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Posted 10 March 2012 - 10:59 PM

Carlie, Bradly (dealing with issues of TDIU) is not applicable to to PR's decision as he is already 100% +60%.


Yes, I'm well aware pr's claim for SMC/S has nothing to do with IU.
I made no implication that it did, the relevance of what I posted is found in the underlined.

#25 Philip Rogers

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Posted 11 March 2012 - 06:55 AM

Just to clarify some things. This claim has been under constant prosecution since 1999. I was originally awarded 30% for PTSD, in 1989. I appealed, eventually getting 50%, then 70%, then TDIU in 1997, and then in 1999. I finally won my appeal retro to 1989, getting 100% schedular for PTSD, alone. At that time I was denied HB & A&A (as inferred issues) At about 11 months after the decision, I applied for HB, figuring I was essentially HB because I rarely left my house, due to the anxiety it caused. I've never applied for "agoraphobia," however do believe I have it. If the claim is won, it will/should go retro to 1989, which "I believe" is part of the reason they continue to deny.

In 2010 they added the additional disabilities, which total 60%, using simple addition. We should not discuss simple addition vs the combined ratings table in my case, as the court needs to decide that issue and I am headed there.

Much of their reasons and bases are false. I've had a pin in my knee since 1971 (after a suicide attempt - m/c vs auto) and haven't had a "normal gait" since 1971 and about 12 yrs ago was told I need a knee replacement. My gait these days is akin to Walter Brennan, in the TV show he had yrs ago. As for walking I doubt I could do 200 yds, w/o much pain and resting every 30-40 yds. I don't fly!!! I have a severe fear of crashing, so I don't. Probably relates to my having to jump outta my first plane rides (yup, Airborne, all the way) Duh!!!!

The important part to me, is that I could "lie" and win but I am always truthful, to a fault. So their calling my credibiliy at issue really irritates me, especially when they accept everything else, "if it's favorable to them."

We'll see what happens.

pr

I also need to add that I was found TDIU in 1997 and again in 1998, by a DRO, but my 1999 retro win, for 100%, superseded those TDIU awards and made them a non-decision or moot. There are numerous other errors they make but I'm not going to take the time to spell them out here. Please note that the BVA judge specifies I have been "unemployed" versus "unemployable," even tho there are many references to me being unemployable by my counselors and caretakers. In fact, enough that the original BVA judge awarded me 100%, in 1999, due to those statements. I was found 100%, for PTSD, based on the 38 CFR 4.16©, that was in effect prior and changed on 10/8/96, as when a rule changes, during the appeal process, the claim is adjucated based on the rule that is most favorable to the claimant.

Edited by Philip Rogers, 12 March 2012 - 06:30 AM.


#26 Berta

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Posted 11 March 2012 - 07:17 AM

I need to highlight what Wings posted -

Wings is correct as to the "or" part of the regs for anyone out there reading these posts and I am glad she clarified this for everyone.


If the disabilties aren't matched to the 60% additionals the VA defines,then VA also considers HB.

My long rendition on my husband didnt make my point well. Sorry .

He was denied for the HB but granted the S due to additional 100% SC disability.

I am surpprised the court has not clarified this issue already- but maybe no vet challenged this at CAVC yet and Philip will be the first one!

#27 Philip Rogers

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Posted 11 March 2012 - 09:50 AM

Wings - thanks for noting that "substantially" info. Technically, to my knowledge, there is no legal definition for the word substantially, that is that I can find. I'm going to contact Bergmann & Moore, or whatever their name is, this week. Time to leave it for the lawyers. At worst I lose and if I win I get between $1 and $60k+. I've a better chance of winning w/the VA than I do any lottery, which I play about twice a yr.

pr

#28 Teac

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Posted 11 March 2012 - 11:55 AM

Mr. XXXXXXXPosted Image maintains that the examiner who conducted his aid-and-attendance/housebound- status
examination failed to consider whether he is permanently housebound because of his service- connected disability or disabilities as required under 38 C.F.R. 3.350(i)(2) (2005). App. Br. at 18. Under 3.350, a claimant may receive SMC if he or she has a single service-connected disability rated as 100% and is permanently
housebound by reason of service-connected disability or disabilities. 38 C.F.R. 3.350(i). A claimant is considered " permanently housebound" when he or she "is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime." 38 C.F.R. 3.350(i)(2) (emphasis added).

In Mr. xxxxx's case the examiner stated: The frequency and under what circumstances the veteran is able to leave the home or immediate premises is significant for occasionally he goes out to eat with his mother and he rides down to the supermarket at least once a week and waits in the car because he avoids crowds. He occasionally drives to group [therapy, and] often car pools with other individuals.

R. at 1407. The examiner failed to discuss whether Mr.XXXXXX was "substantially confined" to his home as contemplated under 3.350(i)(2). Therefore, the examination for SMC was inadequate, and as such, Mr. xxxx's SMC claim must be remanded so that VA may provide him with an adequate aid-and-attendance examination. See Green, Hicks, and Suttman, all supra.

The above is the remand order concerning Housebound/Aid and Attendance exam.

Just a couple of things that I take away with this reading.. and please keep in mind I am not an expert by any means and I may not understand it as it was ment to be understood.

1. The issue of an additional 60% rating added or combined ( over the 100%) was never addressed either by the BVA or by the veteran. It appears this issue was not raised until the regional office had reviewed the claim and denied it a second time (that is when it was reviewed on remand.) This leads one to believe that the claim concering adding vrs combining the additional disability was a clever attempt to keep the claim alive.

Unlike bradley v peake where the va decided to rewrite laws that prevented a veteran from receiving housebound when awarded TDIU, there does not appear to be any re writes or changing of law concerning the combined rating guidelines.In fact the va is not the only agency that uses the whole man concept when considering disability rates and compensation, all private insurance companies do the same thing and it is a legally accepted practice.

Also keep in mind the va recognizes that additional disabilites over 100% present a greater burden to the veteran,but they have decided the greater burden begins at the combined rating of 60% and not before. Once again, Since there is nothing in va law that ever allows disability to be added by normal math, this arguement will have to be decided by the courts, but I sincerely doubt the courts will decide this specific question in favor of the veteran. Frankly, I can't help but think it is one of those " toss at the wall and see what sticks" arguements because I for the life of me can't see the validity of the arguement to begin with.

2. The second point I wanted to make, was that it appears to be the BVA was very liberal, when it decided that the housebound/A&A claim was to be remanded, stating the examiner failed to discuss whether Mr.XXXXXX was "substantially confined" to his home.

Now I stated the BVA was liberal because the examiner also stated , "The frequency and under what circumstances the veteran is able to leave the home or immediate premises is significant" This leads me to think that while the examiner is stating that the veteran is not housebound because he is able to leave the home often and under condtions other than just for medical care.

So, any reasonable person could read the two statements and come to the conclusion that the examiner did in fact address how " substantially confined" the veteran was.. by stating "The frequency and under what circumstances the veteran is able to leave the home or immediate premises is significant".

Please understand I am not a lawyer and often times the va language trips me up.. I am just expressing that I think the va was liberal in granting the remaind. ( I think had it been adjudicated by another judge it would not have been remained) and when upon review by the regionl office the benefit was again denied.. the veteran was creative and presented a whole new arguement concerning the adding of vrs combining of disability because there were no other arguements that could be made.

#29 Teac

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Posted 11 March 2012 - 11:57 AM

Wings - thanks for noting that "substantially" info. Technically, to my knowledge, there is no legal definition for the word substantially, that is that I can find. I'm going to contact Bergmann & Moore, or whatever their name is, this week. Time to leave it for the lawyers. At worst I lose and if I win I get between $1 and $60k+. I've a better chance of winning w/the VA than I do any lottery, which I play about twice a yr.

pr


http://www.thefreedi...m/substantially



sub·stan·tial (sPosted Imageb-stPosted ImagenPosted ImageshPosted Imagel)
adj.
1. Of, relating to, or having substance; material.
2. True or real; not imaginary.
3. Solidly built; strong.
4. Ample; sustaining: a substantial breakfast.
5. Considerable in importance, value, degree, amount, or extent: won by a substantial margin.
6. Possessing wealth or property; well-to-do.
n.
1. An essential. Often used in the plural.
2. A solid thing. Often used in the plural.

#30 Teac

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Posted 11 March 2012 - 12:11 PM

x
x
x

Teac, Play nice. Go to a law library and define "substancial". Better yet, see if the veteran's Court has decided the issue. I cited Roberson vs. Principi, and I think that definition is holding ... ~Wings



Wings, really......
why the play nice comment all I did was post a definition. and I fail to see how a law library would define the word any differently

#31 Wings

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Posted 11 March 2012 - 12:27 PM

x
x
x

http://www.va.gov/ve...es3/1028010.txt

For purposes of housebound benefits, the Court has held that
being "substantially confined" to the home means an inability
to leave to earn an income.
Absent a regulation by the Secretary
defining the term "substantially confined," the Court held that
the term may conceivably be more broadly construed. It found
that Congress intended to provide additional compensation for
Veterans who were unable to overcome their particular
disabilities and leave the house in order to earn an income, as
opposed to an inability to leave the house at all. Hartness v.
Nicholson, 20 Vet. App. 216, 220-22 (2006); cf. Howell v.
Nicholson, 19 Vet. App. 535, 540 (2006)
x
x
x


UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 04-0624

Robert L. Howell, Appellant,

v.

R. James Nicholson,
Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans' Appeals
(Decided March 23, 2006)

Because the meaning of the term "substantially confined" is ambiguous
and there is no regulatory interpretation, "the Court must determine the
meaning" of the term "and the Board's obligation" thereunder. Thompson v.
Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both
supra.

The Secretary submits that the clear implication of this term is
that the requirement that one be "substantially confined" is met when the
claimant is restricted to his house except for medical treatment purposes.

The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes
that in passing section 1114(s) Congress intended to provide additional
compensation for veterans who were unable to overcome their particular
disabilities and leave the house in order to earn an income --as opposed to
an inability to leave the house at all.


Accordingly, we hold that leaving one's house for medical purposes cannot,
by itself, serve as the basis for finding that one is not substantially
confined
for purposes of SMC-HB benefits, and the Board's interpretation
of section 1114(s) to preclude the grant of SMC benefits on the basis of
Mr. Howell's leaving his house in order to attend VA medical appointments
was erroneous as a matter of law.

Accordingly, we hold that leaving one's house for medical purposes cannot,
by itself, serve as the basis for finding that one is not substantially
confined for purposes of SMC-HB benefits, and the Board's interpretation
of section 1114(s) to preclude the grant of SMC benefits on the basis of
Mr. Howell's leaving his house in order to attend VA medical appointments
was erroneous as a matter of law.

Edited by Wings, 11 March 2012 - 12:50 PM.


#32 Philip Rogers

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Posted 11 March 2012 - 12:27 PM

Teac - That's a standard definition for "substantial" but I cannot find a "legal" definition. So would substantial be more that 50% of the time? 70%? 80%? 90%? Let's say based on 90% of the time, that would be 21.6 hrs of each day. So, a HB claimant could spend 2.4 hrs away from their home daily, or 15+ hrs weekly, and still be substantially HB. Just because someone is able to attend occasional medical appointments, weekly PTSD group sessions, shop once weekly and maybe eat out every 2 wks does not make them "not housebound." How about working?? Part of the HB issue is the ability to leave the house/home and earn a living. That would need to be 40 hrs a wk. Just by definition a 100% schedular evaluation includes the inability to work or adjust to a worklike setting.

Just for curiosity sake, have you ever worked "for" the VA, not that it matters?? Just curious, as you sound like someone who has. No offense intended!


Thanks,
pr

#33 Philip Rogers

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Posted 11 March 2012 - 12:40 PM

Thanks again, Wings!!! You found the case I'd been looking for!

pr



x
x
x

http://www.va.gov/ve...es3/1028010.txt

For purposes of housebound benefits, the Court has held that
being "substantially confined" to the home means an inability
to leave to earn an income. Absent a regulation by the Secretary
defining the term "substantially confined," the Court held that
the term may conceivably be more broadly construed. It found
that Congress intended to provide additional compensation for
Veterans who were unable to overcome their particular
disabilities and leave the house in order to earn an income, as
opposed to an inability to leave the house at all. Hartness v.
Nicholson, 20 Vet. App. 216, 220-22 (2006); cf. Howell v.
Nicholson, 19 Vet. App. 535, 540 (2006) (substantially confined
means the inability to leave the house except in instances of
seeking medical treatment).



#34 Wings

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Posted 11 March 2012 - 12:45 PM

Thanks again, Wings!!! You found the case I'd been looking for!

pr


Read my post again, on edit I added No. 04-0624 Robert L. Howell v. Nicholson (2006) ;-) ~Wings

#35 Teac

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Posted 11 March 2012 - 12:49 PM

Teac - That's a standard definition for "substantial" but I cannot find a "legal" definition. So would substantial be more that 50% of the time? 70%? 80%? 90%? Let's say based on 90% of the time, that would be 21.6 hrs of each day. So, a HB claimant could spend 2.4 hrs away from their home daily, or 15+ hrs weekly, and still be substantially HB. Just because someone is able to attend occasional medical appointments, weekly PTSD group sessions, shop once weekly and maybe eat out every 2 wks does not make them "not housebound." How about working?? Part of the HB issue is the ability to leave the house/home and earn a living. That would need to be 40 hrs a wk. Just by definition a 100% schedular evaluation includes the inability to work or adjust to a worklike setting.

Just for curiosity sake, have you ever worked "for" the VA, not that it matters?? Just curious, as you sound like someone who has. No offense intended!


Thanks,
pr


Philip,

No offense taken...

You make a good point I never considered the meaning of the word it the way you have described it.

As to your last question, no I have never worked at the VA. I just look at an issue and try not to be bias one way or the other and offer an opinion. I really try to be very open minded and understand both sides of an issue and most times I learn something in the process as I have done here. Sometimes I may upset someone, but I try to word things in a way that may not offend, most times I think I do ok, other times usually in hindsight I sometimes fail.

I just find your case to be very interesting and in trying to understand it better, I have bounced a few of my ideas back at the board.

#36 Philip Rogers

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Posted 11 March 2012 - 12:50 PM

Again, thank you!! Just think how many claims should be re-adjudicated, just based on this case!

pr



Read my post again, on edit I added No. 04-0624 Robert L. Howell v. Nicholson (2006) ;-) ~Wings



#37 Wings

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Posted 11 March 2012 - 12:58 PM

Wings, really......
why the play nice comment all I did was post a definition. and I fail to see how a law library would define the word any differently


x
x
x

Section 902 Definition of the Term Disability
Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008

902.4 Substantially Limits
(a) General -- Unlike the term "major life activities," the term "substantially limits" frequently requires extensive analysis. The term "substantially limits" is a comparative term that implies a degree of severity and duration. The primary focus here is on the extent to which an impairment restricts one or more of an individual's major life activities. A secondary factor that may affect the analysis is the duration of the impairment.<a href="http://www.eeoc.gov/...2cm.html#fn20">20
When analyzing the degree of limitation, one must remember that the determination of whether an impairment substantially limits a major life activity can be made only with reference to a specific individual. The issue is whether an impairment substantially limits any of the major life activities of the person in question, not whether the impairment is substantially limiting in general. Thus, one must consider the extent to which an impairment restricts a specific individual's activities and the duration of that individual's impairment.
(b) Regulatory Definition -- Commission regulations define the term "substantially limits" and outline factors to consider when determining whether an impairment substantially limits any of an individual's major life activities. In that respect, the regulations state,
(1) The term "substantially limits" means:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
(2) The following factors should be considered in determining whether an individual is substantially limited in a major life activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
29 C.F.R. § 1630.2(j).

#38 Philip Rogers

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Posted 11 March 2012 - 01:00 PM

Thanks, Teac!! Of course, I tend to be a little biased about my claim but when you see how they word the denial, it's hard not to be. I do agree I'm not bedridden, nor blind. I can brush my teeth, wipe parts of my body that need that, for the most part dress myself, however I don't keep myself as clean as I used to, nor do I change my clothes as frequently as I probably should. I have hearing aids, that I rarely use, as they are difficult for me to install, when I do remember them. My medication schedule is frequently forgotten w/o me being reminded. I never "play" on the computer. When I'm on the computer, it's either here, at Hadit, or researching for another vet, or just responding to emails. Their argument just doesn't hold any water.

Thanks for your opinion(s)!!!

pr



Philip,

No offense taken...

You make a good point I never considered the meaning of the word it the way you have described it.

As to your last question, no I have never worked at the VA. I just look at an issue and try not to be bias one way or the other and offer an opinion. I really try to be very open minded and understand both sides of an issue and most times I learn something in the process as I have done here. Sometimes I may upset someone, but I try to word things in a way that may not offend, most times I think I do ok, other times usually in hindsight I sometimes fail.

I just find your case to be very interesting and in trying to understand it better, I have bounced a few of my ideas back at the board.



#39 Teac

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Posted 11 March 2012 - 01:07 PM

x
x
x

http://www.va.gov/ve...es3/1028010.txt

For purposes of housebound benefits, the Court has held that
being "substantially confined" to the home means an inability
to leave to earn an income.
Absent a regulation by the Secretary
defining the term "substantially confined," the Court held that
the term may conceivably be more broadly construed. It found
that Congress intended to provide additional compensation for
Veterans who were unable to overcome their particular
disabilities and leave the house in order to earn an income, as
opposed to an inability to leave the house at all. Hartness v.
Nicholson, 20 Vet. App. 216, 220-22 (2006); cf. Howell v.
Nicholson, 19 Vet. App. 535, 540 (2006)
x
x
x


UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 04-0624

Robert L. Howell, Appellant,

v.

R. James Nicholson,
Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans' Appeals
(Decided March 23, 2006)

Because the meaning of the term "substantially confined" is ambiguous
and there is no regulatory interpretation, "the Court must determine the
meaning" of the term "and the Board's obligation" thereunder. Thompson v.
Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both
supra.

The Secretary submits that the clear implication of this term is
that the requirement that one be "substantially confined" is met when the
claimant is restricted to his house except for medical treatment purposes.

The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes
that in passing section 1114(s) Congress intended to provide additional
compensation for veterans who were unable to overcome their particular
disabilities and leave the house in order to earn an income --as opposed to
an inability to leave the house at all.


Accordingly, we hold that leaving one's house for medical purposes cannot,
by itself, serve as the basis for finding that one is not substantially
confined
for purposes of SMC-HB benefits, and the Board's interpretation
of section 1114(s) to preclude the grant of SMC benefits on the basis of
Mr. Howell's leaving his house in order to attend VA medical appointments
was erroneous as a matter of law.

Accordingly, we hold that leaving one's house for medical purposes cannot,
by itself, serve as the basis for finding that one is not substantially
confined for purposes of SMC-HB benefits, and the Board's interpretation
of section 1114(s) to preclude the grant of SMC benefits on the basis of
Mr. Howell's leaving his house in order to attend VA medical appointments
was erroneous as a matter of law.



Wings,

thanks,

Based on the case above, one could then say that just by being awarded TDIU , the veteran should receive Housebound benefits. After all, TDIU does not preclude one from leaving the home, it just precludes one from leaving the home to work.....

I also noted this was the boards interpretation.. and that is part of the problem as different people have different interpretations and one vet may win a case and another lose based on diffferening judges opinions......

#40 Teac

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Posted 11 March 2012 - 01:12 PM

Again, thank you!! Just think how many claims should be re-adjudicated, just based on this case!

pr



My initial reaction as well......