HadIt.com Elder fanaticbooks Posted November 28, 2010 HadIt.com Elder Share Posted November 28, 2010 NOTE: VA Fast Letter 06-28.pdf DEPARTMENT OF VETERANS AFFAIRS Veterans Benefits Administration Washington, D.C. 20420 December 22, 2006 Director (00/21) 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. Background 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©." Link to comment Share on other sites More sharing options...
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