broncovet

I agree with PR in that I dont see the Va readjuticating every 100% award, to determine if the Veteran is also eligible to SMC Housebound, based on Bradley VS Peake. However, I can not see why a Veteran who has recently (after Bradley vs Peake) been awarded TDIU/100% WITHOUT being considered for SMC housebound, can not consider filing a CUE, as it would appear to me to be statutorily required. IMHO, if a Veteran has been rated TDIU, he probably ALSO has at least one disability at 60% or above. In a like manner, if a Veteran is rated at 100%, he is also likely TDIU in most cases, because I dont see the VA handing out"totals" like they are candy to children. In order to get either 100% or TDIU, there is usually a " substantial decrease in earning capacity" demonstrable by being unemployed/unemployable. Vets who are working rarely get 100%. Part of it is this: When a Vet is finally awarded 100%/TDIU, he has probably been in "survival" mode for several years. He/she is so happy that he finaly got 100%/TDIU, he is interested in celebrating, not in filing NODS. He may not even be "getting" the big picture here. This Vet was probably desperate, destitute, and $32,000 per year seems like a lot of money to a person facing homelessness, especially with some inevitable retro. But if he were young, college educated, healthy, like he was when he entered the military, 32k per year is, well, an insult. One of the "paper pushers" (VA employee/raters) on another site reported he earned more than 100k per year at the Va. Now, why is it that paper pushers deserve 3 times more money than Veterans who lost all their earning capacity due to service to their country? Also, remember this: This 100% Vet was awarded benefits for a reason. He probably has to hire people to do things he used to do himself. He is statutaroliy entitled to housebound, so why shouldnt he get it? Vets, you dont need to settle for less than what you deserve because the VA "beat you up" for 10 years to get your benefits.

Training Letter: IU Training Letter 07-01 TotalDisability Ratings Based on Individual Unemployability(IU) Benefits granted under the VA rating schedule areintended to compensate veterans for the average impairment in earningcapacity that results from service-connected disease or injury. IU isa special additional benefit to address the truly unique disabilitypicture of a veteran who is unemployable due to service-connecteddisability, but for whom the application of the rating schedule doesnot fully reflect the veteran’s level of impairment. An award of IUallows the veteran to receive compensation at a rate equivalent tothat of a 100 percent schedular award. However, this benefit is notintended, by regulation or policy, to be a quasi-automatic benefitgranted whenever a veteran has met a qualifying schedular evaluationor reached an advanced age. When raised as an issue, IU isappropriate only in exceptional cases. First determine if theveteran’s disability(ies) warrant a 100 percent schedularevaluation before considering whether to assign a total disabilityrating under either 38 CFR 4.16 or 3.321. 1. GeneralRequirements for Entitlement to IU Entitlement to IUrequires that the veteran meet certain initial criteria listed at 38CFR 4.16 as well as continuing criteria as explained below. The IUbenefit continues only as long as the veteran remains unemployable.VA monitors the employment status of IU beneficiaries and requiresthat they submit an annual certification ofunemployability. Consideration for IU requires that: oThe veteran has service-connected disability(ies) as described in 38CFR 4.16(a) or 4.16(b), and  The evidence showsunemployability due to a service-connected disability. 1.a.Schedular Requirements The qualifying schedular evaluations areprovided at § 4.16(a). The veteran must be service connected for asingle disability evaluated at least 60 percent disabling or serviceconnected for multiple disabilities evaluated at least 70 percentdisabling, with one of the multiple disabilities rated at least 40percent disabling. This section also provides a list of circumstanceswhere the requirement for a single 60 or 40 percent disability may bemet by a combination of disabilities that can be considered a singledisability (such as those arising from common etiology or a singleaccident, or those affecting a single body system, etc.). Carefulconsideration must also be given to the cause of the veteran’sunemployability. Unemployability must result from one ormore service-connected disabilities. Disabilities for which serviceconnection has not been granted do not qualify for consideration as asource of unemployability. If the veteran does not meetthe requirements of 38 CFR 4.16(a) but there is evidence ofunemployability due to a service-connected disability, then the caseshould be submitted to the Director of Compensation and PensionService for a determination of eligibility, as provided at 38 CFR3.321(b) and 4.16(b). 1.b.Unemployability Unemployability means the inability of aveteran to secure or follow a substantially gainful occupation. Afinding of unemployability cannot be made if the evidence shows thatthe veteran is engaged in, or is capable of being engaged in, asubstantially gainful occupation. However, a finding could be made ifthe evidence shows marginal employment. Marginal employment isdefined in terms of a veteran’s earned annual income. This incomeshould generally not exceed the government’s established povertythreshold for one person. Exceeding this threshold may indicate asubstantially gainful occupation, as noted by the Court of Appealsfor Veteran’s Claims (CAVC) in Faust v. West, 13 Vet.App. 342(2000), where a substantially gainful occupation was defined as "onethat provides annual income that exceeds the poverty threshold forone person." In addition to the income criterion,evidence showing that employment is marginal rather thansubstantially gainful may also exist on a "facts found"basis. Examples of this marginal status include employment in theprotected environment of a family business or sheltered workshop.Such fact-based marginal employment is consistent with a finding ofunemployability. 1.c. Age Factor It is clearfrom 38 CFR 4.19 that consideration of a veteran’s age isappropriate when evaluating disabilities for pension claims, but notfor awarding IU benefits. The regulation states that unemployabilityassociated with advancing age may not be used as a basis for a totaldisability rating in service-connected claims. This provision isechoed at 38 CFR 3.341, which states that the service-connecteddisability must be sufficient to produce unemployability withoutregard to advancing age. Advancing age in this contextmay relate to voluntary retirement or removal from the work forcebased on tenure or longevity rather than disability. Voluntaryretirement does not necessarily show unemployability and should notbe used as the only evidence of unemployability. Therefore, whenevaluating a claim for IU received from a retired veteran of advancedage, careful consideration must be given to distinguishing a worseneddisability that would have caused unemployability from unemploymentdue to retirement. When an IU claim is received from a veteran ofadvanced age, the rating should discuss the factor of age and providean explanation of how the available evidence was evaluated to arriveat the decision to grant or deny IU. 2. Claims forIU Claims for IU are generally submitted by the veteran butmay also be reasonably raised by the evidence of record, includingstatements or evidence submitted by the veteran indicatingunemployability. IU claims filed by the veteran can be considered asclaims for an increased evaluation when associated with evidence of aworsened service-connected condition. Claims for an increasedevaluation, even without a specific IU claim from the veteran, maygive rise to a claim for IU that must be considered. 2.a.Reasonably Raised or Informal Claims In Norris v. West, 12Vet.App. 413 (1999), the Court held that where the rating activity isconsidering a claim for increased evaluation from a veteran who meetsthe qualifying schedular disability percentage requirements and thereis evidence in the claims folder, or under VA control, which showsunemployability due to service-connected disability, then a ratingfor the claimed increase must also include a rating of a reasonablyraised claim for IU. Thus, under the proper circumstances, a claimfor IU exists, even though the veteran did not specifically make theclaim. The issue of a reasonably raised claim for IU wasalso addressed in the Federal Circuit case of Roberson v. Principi,251 F.3d 1378 (Fed. Cir. 2001). In that case, the Court held thatonce a veteran submits evidence of a medical disability, makes aclaim for the highest possible rating, and submits evidence ofunemployability, the requirement of 38 CFR 3.155(a) that a claimantmust "identify the benefit sought" is met. In such cases,VA must consider total disability based upon IU. The Court notedthat, under these circumstances, the IU benefit being sought has beenidentified in conformity with the informal claim requirements of §3.155(a). (See also, Servello v. Derwinski, 3 Vet.App. 196, 199(1992) (veteran must provide evidence of entitlement to IU rating byvirtue of unemployability)). The Court further stated that VA isobligated to develop a claim "to its optimum," which meansconsidering all potential claims raised by the evidence and applyingall relevant laws and regulations, regardless of whether the claim isspecifically labeled as a claim for IU. Under circumstances wherethese conditions apply, but where the veteran does not meet theschedular requirements of § 4.16(a), the case should be referred forextra-schedular consideration as specified at § 4.16(b). Whenthe veteran has already been awarded a 100 percent total evaluationfor one disability, an award of IU for a separate disability ordisabilities should not be considered. The VA Office of GeneralCounsel held in VAOPGCPREC 6-99, that when a schedular totaldisability grant has already been made, no additional monetarybenefit would be available to a veteran based on unemployability andany such claim would be moot. 2.b. Claim for IUDefined • A formal claim for IU on VA Form21-8940. • Any written communication indicating thatthe veteran is unable to work because of his or her service-connecteddisability(ies). • To raise an informal IU claim, theveteran must claim an increased evaluation for his or herservice-connected disability(ies), submit medical evidence or beshown on VA examination to meet the requirements of § 4.16, andclaim the inability to work due to his or her service-connecteddisability. • Although a claimant who seeks anincreased rating is presumed to be seeking the highest ratingpossible, a claim for IU cannot reasonably be raised unless theveteran claims to be unable to maintain substantially gainfulemployment due to service-connected disability. 3. IUClaim Development 3.a. VA Forms 21-8940 and 21-4192 Claimsfor IU require that a VA Form (VAF) 21-8940, Veteran’s Applicationfor Increased Evaluation Based on Unemployability, be completed andsubmitted to the VA regional office by the veteran. If an IU claimhas been reasonably raised by the evidence of record, a VAF 21-8940must be sent to the veteran for completion and return before an awardcan be considered. The VAF 21-8940 requires that the veteran list allemployment for the five years prior to becoming too disabled to workand provide an accounting of current income. If the VAF 21-8940 isnot returned by the veteran within 60 days, a formal rating decisionwill be made on the basis of the evidence of record, which considers,among other factors, that necessary evidence was not furnished by theclaimant. If the VAF 21-8940 is returned after the rating decision isissued, but within one year of the date sent, the claim should bere-rated. See also section 4.d., Effective Dates for ReasonablyRaised IU Claims. Once the regional office receives VAF21-8940 and former employers are identified, then VAF 21-4192,Request for Employment Information in Connection with Claim forDisability Benefit, will be forwarded to the former employers listedon the form. The VAF 21-4192 requests that the employer provideinformation about the veteran’s job duties, on-the-job concessions,date of and reason for job termination, etc. Information given onboth VAF 21-8940 and VAF 21-4192 is essential to a fair evaluation ofthe IU claim. However, IU benefits should not be denied solelybecause an employer failed to respond to VAF 21-4192. 3.b.Medical Evidence The available medical evidence must showthat a service-connected physical or mental condition is currently sosevere and disabling that it prevents the veteran from securing orfollowing a substantially gainful occupation. Any relevant medicalevidence must be obtained from both VA and private sources as part ofthe development and evaluation process. These documents may containdescriptions of physical limitations caused by a service-connecteddisability or may contain opinions by medical professionals regardingthe veteran’s ability or inability to engage in work-relatedactivity. If the evidence obtained is incomplete or inconsistent anddoes not provide a basis for assessing unemployability, then a VAexamination should be scheduled, as provided under 38 CFR 3.326 and3.159©(4). The medical examiner should be requested to provide anopinion regarding the effect of the service-connected disabilities onthe veteran’s ability to engage in substantially gainfulemployment. Further, because it is preferable to rate a veteran as100 percent disabled on a schedular basis as opposed to awarding IU,order an examination for each service-connected condition that is notat the maximum schedular evaluation. 3.c. VocationalRehabilitation and Employment Service (VR&E) Records Whenthe veteran’s claims folder indicates that he or she has been seenby VR&E Service, any records related to this contact must beobtained and evaluated. The records may document the veteran’sparticipation in a training program or may show that training was notfeasible or was unsuccessful. The VR&E records provide importantevidence for evaluating current unemployability. VA recognizes theimportance of fostering a return-to-work attitude among veteransawarded IU and has implemented the use of a "motivationalletter" encouraging new IU recipients to contact VR&E forassistance in returning to work. 3.d. Social SecurityAdministration (SSA) Records When the claims folderindicates that the veteran has been examined or awarded disabilitybenefits by SSA, any relevant records must be obtained and evaluated.The CAVC held in Murincsak v. Derwinski, 2 Vet.App. 362 (1992), thatVA’s duty to assist includes requesting both the SSA decisiongranting or denying benefits and any supporting medical records.Although VA is not obligated to follow a determination made by SSA,these records may be relevant to the issue of the level of impairmentof the veteran’s service-connected disability. However, rememberthat SSA benefits may be awarded for any disability, whereas IUbenefits must be based on service-connected disability. Therefore,careful attention must be paid to determining what disabilityresulted in a SSA benefit award and whether that disability is onefor which service connection has been granted. 4. RatingConsiderations Rating decisions granting or denyingentitlement to IU must provide enough explanation so that theclaimant and representative can understand the reasons and bases forthe decision. As with any decision, the rating must list the evidenceconsidered, a clear explanation of the basis of the decision, and anexplanation of the effective date of entitlement. 4.a.Date of Claim A veteran’s initial claim for IU may bereceived from any source indicating the benefit being sought,including a VAF 21-4138, Statement in Support of Claim. If theveteran files an informal claim, the regional office must send theveteran a VAF 21-8940 with instructions to complete and return itwithin one year in order to preserve date of receipt of the earliercommunication as the date of claim. If the VAF 21-8940 is receivedafter the one-year period has expired, the date of claim will be thedate of receipt of the VAF 21-8940 as provided in § 3.159(b)(1). Ifthe veteran submits a VAF 21-8940 as the initial IU claim, receipt ofthis form will represent a claim for IU and will establish the dateof claim. 4.b. Effective Dates for IU Awards -Application of 38 CFR 3.400(o)(2) When an IU claim is associatedwith a veteran’s worsened service-connected disability, it isconsidered a claim for increase and the effective date of entitlementmust be in accordance with § 3.400(o)(2). That section specifiesthat the effective date for an increase will be the earliest datethat it is "factually ascertainable" that an increaseoccurred, provided this date is within one year preceding receipt ofthe claim. Otherwise, the effective date is the date of receipt ofthe claim. Claims for an increased rating are consideredclaims for IU if any of the following conditions apply: o The IUclaim is submitted on VAF 21-8940, or o In addition to aformal or informal claim for an increased rating, the veteran allegesthat he or she is unemployable or VA receives evidence ofunemployability, or o In the course of developing aclaim for an increased rating, VA obtains evidence of unemployabilityand VA grants the veteran a rating that makes the veteran eligiblefor IU. When a veteran claims entitlement to IU withoutclaiming increased disability, but increased disability is shown onVA examination or other medical evidence, the effective date of bothgrants is controlled by 38 CFR 3.400(o)(2). 4.c.Application of 38 CFR 3.400(o) There are cases, however,where a claim for IU is not associated with a claim for increaseddisability. In these situations, the effective date is governed by §3.400(o), which provides that the effective date will be the date ofreceipt of claim or the date entitlement arose, whichever is later. Acase such as this might occur where a veteran has been unemployabledue to service-connected disability meeting the schedularrequirements for IU, but has never applied for IU. When the veteranfiles a claim for IU, and there is no associated worsened disability,it is not a claim for an increased disability. Therefore, the date ofclaim would generally be the effective date, unless evidenceindicated a date of entitlement later than the date of claim. 4.d.Effective Dates for Reasonably Raised IU Claims Reasonablyraised claims for IU may arise in a veteran’s original claim orclaim for an increased rating. In original claims, IU must beconsidered when there is evidence of unemployability due to theclaimed service-connected disability or disabilities. In claims foran increased evaluation, the CAVC holding in Norris requires that VAmust consider a claim for IU when a veteran: o has submitteda claim for an increased evaluation, and o meets theminimum schedular requirements for IU, and o there isevidence of unemployability resulting from service-connecteddisability. In addition, if VA receives, or is in possessionof, evidence showing a worsened service-connected disability based ona report of medical examination or hospitalization, that evidence mayestablish an informal claim for increased evaluation, as provided in38 CFR 3.157. In that event, if the schedular requirements for IU aremet, evaluation of the informal claim for increase must also includean evaluation of a reasonably raised claim for IU. Whena claim for IU is reasonably raised, VAF 21-8940 must be sent to theveteran for completion and return. Because this type of IU claimarises when there is an associated claim for increase, the effectivedate of a grant of IU is governed by § 3.400(o)(2). This means thatevidence of a factually ascertainable date of unemployability withinthe year preceding the date of claim may establish the effectivedate. In many cases, this may be the same date as that for theincrease. If the reasonably raised IU claim is receivedat the same time as other claims from the veteran and a ratingdecision is issued on the other claims, defer the IU claim and sendthe veteran VAF 21-8940. When the form is returned, it can beevaluated along with other evidence and a decision can be maderegarding IU. If the form is not returned within 60 daysof mailing, issue a formal rating decision based on the evidence ofrecord. If the VAF 21-8940 is returned after the rating decision ispromulgated but within one year of the date the VAF 21-8940 wasrequested, re-rate the claim using the date of mailing of the form tothe veteran as the date of claim. If IU is granted, the effectivedate of the award would be the date of receipt of the informal claim.If the form is not returned within one year of the date sent,benefits cannot be paid prior to date of receipt of the VAF21-8940. 4.e. Chapter 35 Benefits: Survivors’ andDependents’ Educational Assistance 38 U.S.C. Chapter 35and regulations at 38 CFR 3.807 establish that educational benefitsare available for dependents of a veteran who has been awarded apermanent and total service-connected disability. Although thedisabling conditions that lead to an award of IU are considered to betotal based on unemployability, they are not always permanent.Unemployability may be temporary: for example, where the veteranundergoes VR&E training and is subsequently able to engage in asubstantially gainful occupation. The VA Office of General Counselhas acknowledged that an IU award may be temporary. In VAOPGPREC5-05, it was determined that § 4.16(b) "permits the award of atotal disability rating based on temporary (i.e., non-permanent)inability to follow a substantially gainful occupation." BecauseIU is acknowledged as a benefit that is not necessarily permanent,careful consideration must be given to granting the Chapter 35educational benefit in association with the IU award. Substantialevidence must show that the veteran’s unemployability status ispermanent before the Chapter 35 grant is appropriate. 5.Continuing Requirements for IU Award 5.a. VA Form21-4140 After the initial IU award has been made, theveteran must submit a VAF 21-4140, Employment Questionnaire, on ayearly basis to certify continuing unemployability. The VAF 21-4140is required unless the veteran is 70 years of age or older, has beenin receipt of IU for a period of 20 or more consecutive years (asprovided at 38 CFR 3.951(b)), or has been granted a 100 percentschedular evaluation. The form is sent out annually to the veteranfrom the Hines Information Technology Center and must be returned tothe regional office. It requests that the veteran report anyemployment for the past 12 months or certify that no employment hasoccurred during this period. The VAF 21-4140 includes a statementthat it must be returned within 60 days or the veteran’s benefitsmay be reduced. Completion of this form has a major impact on IUbenefits in one of three ways, as described below. VAF21-4140 returned with no change If VAF 21-4140 is returnedin a timely manner and shows no employment, then IU benefits willcontinue uninterrupted. VAF 21-4140 returned showingemployment If VAF 21-4140 is returned in a timely manner andshows that the veteran has engaged in employment, VA must determineif the employment is marginal or substantially gainful employment. Ifthe employment is marginal, then IU benefits will continueuninterrupted. If the employment is substantially gainful, then VAmust consider discontinuing the IU benefit. VA regulations at 38 CFR3.343©(1) and (2) provide that actual employability must be shownby clear and convincing evidence before the benefit is discontinued.Neither vocational rehabilitation activities nor other therapeutic orrehabilitative pursuits will be considered evidence of renewedemployability unless the veteran’s medical condition shows markedimprovement. Additionally, if the evidence shows that the veteranactually is engaged in a substantially gainful occupation, IU cannotbe discontinued unless the veteran maintains the gainful occupationfor a period of 12 consecutive months. Once this periodof sustained employment has been maintained, the veteran must beprovided with due process before the benefit is actuallydiscontinued, as stated at 38 CFR 3.105(e) and 3.501(e)(2). Thisconsists of providing the veteran with a rating which: oProposes to discontinue the IU benefit o Explains thereason for the discontinuance o States the effectivedate of the discontinuance, and o States that theveteran has 60 days to respond with evidence showing why thediscontinuance should not take place. If the veteran responds withevidence, it must be evaluated. If the evidence is insufficient orthe veteran does not respond, then the regional office willdiscontinue the IU benefit and provide the veteran with a finalrating decision explaining the decision. The effective date of thediscontinuance will be the last day of the month following anadditional period of 60 days, which begins from the date the veteranis notified of the final rating decision. VAF 21-4140not returned If VAF 21-4140 is not returned within the 60days specified on the form, then the regional office must initiateaction to discontinue the IU benefit pursuant to 38 CFR 3.652(a). Dueprocess must be provided with a rating decision that proposes todiscontinue the IU benefit for failure to return the VAF 21-4140. Ifa response is not received within 60 days, then the IU benefit willbe discontinued and a rating decision will be sent to the veteranproviding notice of the discontinuance. The effective date ofdiscontinuance will be the date specified in the rating decisionwhich proposed discontinuance, as described above, or the dayfollowing the date of last payment of the IU benefit, as specified at§ 3.501(f), whichever is later. The veteran must also be notifiedthat if the form is returned within one year and shows continuedunemployability, then the IU benefit may be restored from the date ofdiscontinuance. 5.b. Income Verification Match (IVM) andField Examinations The IVM is a method of comparing an IUrecipient’s earned income, as reported to VA by other federalagencies, with the earned income limits that define marginalemployment. If income reports show significant earned income abovethe poverty threshold, the regional office must undertake developmentto determine if the veteran is still unemployable. Anothermethod of monitoring unemployability status among IU recipients isthrough the VA Fiduciary Activity. This service conducts fieldexaminations when it has been notified that an IU recipient might bepursuing a substantially gainful occupation. If the field examinerfinds evidence of employment or if the veteran is unwilling tocooperate with the examiner, then the examiner will forward thisinformation to the Rating Activity. A decision must then be made asto whether the IU benefit will be discontinued. This determinationmust take into account the regulatory requirements listed above,including: (1) whether there is actual employability by clear andconvincing evidence and (2) whether there has been substantiallygainful employment for 12 continuous months. If termination of the IUbenefit is appropriate, a rating decision proposing discontinuancemust be completed, with notice to the veteran that he or she has 60days in which to contest the discontinuance. If no evidence orinsufficient evidence is received within this period, then a finalrating decision must be promulgated with notice to the veteran thatthe IU benefit will be discontinued on the last day of the month inwhich the additional 60-day due process period expires. This 60-dayperiod will begin from the date of the notice of the final ratingdecision, as provided in § 3.105(e).

Try this link to Training letters, there are several: http://vets.yuku.com/reply/375848/t/VA-Training-Letter-Information-Multiple-Areas.html#reply-375848

I agree with PR in that the VA "throws you a bone" kinda hoping you wont realize that there was supposed to be meat on that bone also. Even a 100% rating can be a "lowball"...especially if the VA messes with the effective date, and does not consider SMC, deemed denying it.

Good point, John. I think that the VA is supposed to specifically address housebound in a decision which awards 100%. Im sure they often due exactly what you suggested: "Duh, we considered housebound, and denied it, but never bothered to write this in the decision, so housebound is "deemed denied", and if the Veteran does not appeal within one year, this sub silentio denial becomes final." The burden is the Veterans to prove CUE if he does not appeal the 'automatic' denial of housebound, unfortunately. I dont know if this is CUE or not, but it would sure seem like it to me..if the VA is required to consider housebound, but does not address it in the decision and give a reasons and basis for denial.

What a great idea! I have read at least one training letter that does a pretty good job of summarizing and applying applicable regulations. I think an index with links to these would be very valuable.

First, with a 1200 mortage payment and only 1900 per month income (with 63% of her income going to housepayment), she needs to do something pretty fast or she will likely loose her home. (Most of the time the loan company wants your housepayment to be no more than about 35% of your income, and for good reasons) Since it will take a long time for the Va benefits to kick in, even if she is eligible for any more, she needs to address the housepayment. Some options are: 1. Sell the home and move into something considerably less expensive, either a smaller home or apartment/condo. She should get her house payment or rent down to about 665 per month or less to be able to sustain it longer term. 2. Possibly refinance at a lower interest rate. 3. Sharing her home with roomate(s) probably would be preferrable to loosing her home altogether. 4. If he had a significant amount of life insurance, she could consider "annuitizing" it. An annuity converts a lump sum, such as 200,000 dollars, into steady monthly income that a widow may need. These are available through a licensed life insurance agent. As a former insurance agent who has delivered death claim checks, I know the average widow spends the entire life insurance proceeds, on average, in 2 years.

PR hit the "nail on the head". The VA has all these regulations and then follows only the ones they choose to follow. It is up to the Veteran to force the VA into regulatory compliance, usually upon appeal. Tatum vs Shinseki, (CAVC), suggests the VA is required to consider that the Veteran is seeking the max benefit, as the following quote from this case demonstrates: When a veteran files an increased rating claim, it generally is presumed that he or she is seeking the maximum benefit allowed by law. See AB v. Brown, 6 Vet.App. 35, 38 (1993) (presuming that a claimant is seeking the maximum benefits allowed by law and regulation); see also Bradley v. Peake, 22 Vet.App. 280, 294 (2008) (Secretary required to maximize benefits); 38 C.F.R. § 3.103(a) (2009) (noting VA's obligation to "render a decision which grants every benefit that can be supported in law"). In this instance, in addition to the findings of the Board that there is evidence of weight gain and that Ms. Tatum suffers from fatigability and mental sluggishness, as discussed above, the record also contains evidence that she suffers from both muscular weakness and mental disturbance. See R. at 1101, 1150-51. Despite the fact that a 60% disability rating is warranted upon a showing of these symptoms (muscular weakness, mental disturbance, and weight gain), and therefore its application was reasonably raised by the evidence, the Board failed to explain why a 60% disability rating was not warranted. See Beverly v. Nicholson, 19 Vet.App. 394, 405 (2005) (stating that "the Board is required to adjudicate all issues reasonably raised by a liberal reading of the appellant's substantive appeal, including all documents and oral testimony in the record prior to the Board's decision." (citing Brannon v. West, 12 Vet.App. 32, 34 (1998))); Urban v. Principi, 18 Vet.App. 143, 145 (2004) (per curiam) (recognizing the Board's obligation to consider "all reasonably raised matters regarding the issue on appeal"), aff'd, 128 F. App'x 124 (Fed. Cir. 2005) (per curiam); Schafrath, supra. IMHO the "maximum benefit allowed by law" statement does not exclude the Veterans potential eligibility to benefits for SMC, or TDIU as applicable.

You have gotten some good advice from Carlie and Berta, but I would add that I am pretty sure if you submit evidence AFTER the SOC the RO will have to do a SSOC (Supplemental Statement of Case). Of course, we know the Va does not necessarily follow their own rules, but I think a SSOC is required when the Veteran submits new evidence after the SOC. Bottom line is that you can submit new evidence, but I think you would want to weigh whether or not this new evidence was outcome determanitive to your claim because it will likely cause more delays, for the RO to prepare a SSOC. One option you have is to NOT submit this new evidence, and wait to see if you get the benefit you want. If you do not get the benefit you want, you can submit the "new and material evidence" and ask for a MFR.

Frankly, could you imagine a rater going through this senario: Ok. This Vet is applying for benefits. Naturally, he is trying to get the lowest benefit possible. This means to forget SMC, forget, TDIU, forget the higher percentages and assume the Vet is seeking a 0% rating..or even less..a denial. In fact, if this Vet is seeking that low of a benefit, why dont I just give him the lowest benefit possible and deny everything! That should make the Vet happy since he is seeking the minimum benefit possible. I think the laws are clear, instead, that the VA must consider that the Veteran is seeking the highest benefit available which is supported by law....this means 100% plus SMC to the highest level that the evidence supports. The VA isnt supposed to say..well, he should be eligible for SMC but I dont think he really wants all that money.

Pr So what you are saying is that the highest award possible is NOT equal to the highest monetary benefit? This does not make sense to me. If the Veteran is seeking the highest possible award, would he not be also seeking the highest monies to be paid, or would he be seeking a lower amount? I think the court recognizes, in part at least that the Veteran applying for benefits is probably not an expert on the ins and outs and many details of the VBA system. All the Vet knows is he is asking for benefits, and he may not even know what terms like, "SMC" , "TDIU", A&A, etc. mean. And he should not have to know either. Should social security beneficiaries be required to master the social security claims system? I can promise you when I applied, I had no idea what these terms meant. Did you? Most of us filled out the forms and relied upon our VSO and the VA to determine to what extent and what benefits we were eligible..and, most of us were, indeed, seeking the greatest MONETARY benefit...it is in rather rare circumstances where we would seek less. If you went to work at a job, would you expect them to place you at the lowest paying position possible? If they did, you would not likely work there long. Instead, you would want your boss to give you the HIGHEST Paying position to which he felt you were qualified, otherwise, you would be applying at other companies to increase your salary. Remember the VBA is supposed to be "pro claimant, ex-parte system". Of course, we all know that is not necessarily the case. If it were, then the VA should fire all 400 or so lawyers who represent them against claimants, and instead assign them to Veterans to help Vets obtain the highest benefit possible. Isnt this what Bradley is about? The Vet applied for benefits, and the Va is required to assume the Vet is ALSO seeking SMC to the highest extent to which the Veteran is eligible.

My rating when I applied for IU is a big grey area. I actually applied when I first applied for benefits, explaining that, because of SC conditions, I was unable to get a job. So, I guess that means my rating was 0 at that time. I got my benefits in "steps", which the VA LOVES to do, rather than just award the whole enchilada at once. It seems the Va loves to complicate, and Bradley certainly complicates the VA automatically denying IU as moot, whenever 100% schedular is awarded.

While I agree with John in that a NOD does NOT require the VEteran to specify which issues he is disputing, the Veteran MAY exclude some items in the NOD from appealate review, if he elects to do so. If you read BVA decisions, they always state the issues such as: 1. Veteran disputes denial for hearing loss. 2. Veteran contends he is entitled to an earlier effective date. Then the BVA will go on to address these issues. In my BVA decision the BVA stated to the effect that the record shows the Veteran has had symptoms of tinnitus and may consider applying for tinnitus.

Frankly, the BVA (and a DRO or even CAVC) is not there to reduce Veterans benefits (unless the RO proposed the reduction first and its under appeal) Remember, the BVA wont adjudicate a claim, unless 1) the RO has adjudicated it first OR the Veteran has signed a waiver of RO consideration. This, IMHO, would apply whether or not the outcome was favorable to the Veteran. From a practical standpoint, the BVA doesnt have time to do reductions (unless the RO proposed the reduction first and it is under appeal). The BVA doesnt go through your claim and try to find a way to cut your benefits. There is a procedure for this, and it is done by the RO, not the BVA, CAVC, etc.

Kelly I am pretty sure I recall reading that the BVA has no authority to change a decision that the Veteran does not file an NOD to, and this is inclusive of other issues. Far fetched (but possible) example: You get awarded 70% for depression but you think maybe your symptoms are closer to 50%. However, you file a NOD because your Sleep apnea was denied. In your NOD, you need to specify the issues, in this example: I disagree with the Nov. 1 decision denying sleep apnea. In this instance, the BVA wont do something like deny your sleep apnea and ALSO even reduce you from 70 to 50 for depression. They cant, as they dont have jurisdiction over any issues other than the ones you file a nod on, even if they think a reduction for depression is justified. Others can chime in here, but I dont think the BVA can adjuticate an issue UNLESS the Veteran files a NOD on THAT ISSUE. So, your "other issues" become final, and the only issue pending is the one(s) you file a NOD on.

I agree, Basser, but what I am saying is that if IU is denied because it is considered moot, then if IU were considered (awarded), the Veteran would meet the 100 plus 60, and eligibility for SMC housebound. That is, IU being moot would never be the case, since the Veteran would get more benefits WITH IU than without IU. Example: Veteran is 30% for depression, 10% tinnitus, and had applied for an increase for depression as well as TDIU. Veteran was awarded 100% for depression, but TDIU was denied as it was considered moot. "Moot" means it does not make any difference, BUT IT REALLY DOES make a difference because if the Veteran was awarded IU, he would be eligible for SMC.

I had applied for IU, which was denied because it was "moot" when I was awarded 100%. However, Bradley vs Peake clearly shows that it is NOT moot, because IU plus 100% clearly qualifes the Veteran for housebound. (SMC S, I think). Is this CUE?

I agree, and you have gotten good advice. You dont need to be "housebound" to get housebound if you are 100% (or IU) plus 60%..you automatically qualify with 160%.

Remember, Veterans still have something "in their favor". I think this is a well kept secret at the VA, "leaked" by Supreme Court justice Roberts. Paraphrasing, Roberts, "In 70% of the cases the VA takes a position that is substantially unjustified, against the Veteran". I think some interpreting of what this means to Veterans in necessary here. The VA is going to fight you, tooth and nail, even when they have a weak or no case at all, just to see if you will persist. They are hoping you will get tired and give up, or die. The sad part for Veterans is that the VA wins 100% of the time. You see, whenever they can pay you 10 or 20 years later, without interest, the VA has made an interest free loan against the Vet, and the Vet looses even when he "wins". How? You see, on a long term basis, such as a home loan, the interest is more than the principal. So the VA keeps the interest, and you get only the principal. If you dont think so, go to a mortgage calculator, and just see how much interest there is, say on a 30 year home loan.

Oh, and I say this even tho I think filing a writ got my case going also, and eventually won it for me even tho the writ was denied. Most of the time the intent of filing a "writ" is not to win, but rather to get a claim moving that is "stuck" somewhere in the appellate process. One alternative is to wait, maybe a month or so, and file the Writ pro se. As someone pointed out, pro se Writ's are not expected to be up to the level of attorney represented Writs. In my writ, the judge told the RO's attorney to respond to my allegations. They did "respond" to the court, lying about some stuff. They also had to "show their hand" which was instrumental in me eventually winning my case. You see, the RO cant tell the CAVC court one thing, then tell the BVA judge something else without getting egg all over their face. Pretty much, thats what happened, because there is one hard and fast unwritten rule the Va always follows: THEY NEVER ADMIT THEIR LIES BUT TRY TO COVER THEM UP INSTEAD. It took me a month or so to prepare the writ, so if you need something to do to keep you from going nuts, then you can prepare your writ. Heck, you can even send it to Mr. Carpenter if you like.

My first thought was to follow VAF's advice and file a writ. However, Altho I agree with VAF because a writ is saying, "Im not going to take this delay any longer", I recommend you follow Ken Carpenter's advice, instead. Ken Carpenter has won many, many hundreds of thousands of dollars for Veterans in sometimes "landmark" (precedent setting) cases. Remember, Ken Carpenter has a financial interest in winning your case also, and I can pretty well guess he would rather get his money sooner rather than later. VAF offers outstanding advice, but Ken Carpenter obviously knows YOUR case better, if he is your lawyer. I know its frustrating, but you hired him and now you need to trust your lawyer. JMHO

Thanks for the response. I seem to recall that Housebound (SMP) was in addition to Pension. I am eligible for Pension, because I used to get it (before I got 100% SC). Does any one get SMP Housebound PENSION who is 100%? Thanks for your responses.

Im trying to figure this out. I was awarded 100% for depression, and SMP housebound. I dont get any money for housebound. I thought being 100% P and T, I am not eligible for Pension, so I am guessing I should get SMC for Housebound. The decision, which awarded 100% for depression states: 5. Entitlement to special monthly pension based on housebound. While not specifically claimed or appealed by the veteran, de novo review of evidence in connection with his NOD shows entitlement to special monthly pension based on Housebound. Entitlement to special monthly pension based on Housebound is granted where the Veteran has a single disability evaluated at 100% and has other disabilities that can be evaluated at a seperate 60 percent evaluatin; or when the evidence shows the veteran is housbound "in-fact". The veteran meets the criteria for special monthly pension based on housebound as of (date), the date his VA treatment reports he began using a CPAP for treatment on his nonservice connected sleep apnea (warranting a 50% evaluation for pension purposes) as the Veteran has single disability evaluated at 100% disabling as of his date (i.e., his service connected depression) and his other service connected and nonservice connected disabilities (including his NSC sleep apnea) combine to an independent seperate evaluation of 60%. Therefore, entitlement to special monthly pension based on Housebound is granted effective (date). Please Note: While service connected disabilities and non service connected disabilities may be used in determining entitlement to special monthly pension, only service connected disabilities may be uses in determinging entitlement to special monthly compensation. ----end quote of decision--- As I said, I think this means I get SMP and not SMC Housebound, as its in part NSC. Is anyone familiar with this? It seems like I should get something for Housebound???

Carlie An ejection fraction of 36 means that your heart is pumping about half the blood it should, since EF normal is about 55-75%, according to Wikipedia: http://en.wikipedia.org/wiki/Ejection_fraction IMHO the nexus between pulmonary issues and heart issues is so strong that you should definately win. I am not a cardiologist, however, my wife is a cardiac nurse with 10 plus years caring for cardiac patients at a hospital known as one of the best heart hospitals in the nation. Example of why I think heart problems are linked to lung problems: I went to the doc with chest pain. VA was full, so I went to a local heart hospital and my wife selected the cardiologist, since she pretty much knows all of them here locally. This cardio doc did his tests on my heart and diagnosed sleep apnea! How did he diagnose sleep apnea with heart tests? Because the right side of my heart was enlarged, and the cardiologist knows that the heart compensates when I did not get enough oxygen at night. The diagnosis of sleep apnea was confirmed with a sleep study. Of course, when it comes to predicting what a VA rater will do, it is always a crap shoot, but there is not much doubt in my mind anyway of the heart/pulmonary/asthma link, and that you will get your link you need for benefits. Unfortunately, most raters know little, if anything about the medical field, so it may take more time for more appeals if this rater does not get it right. Wifey is not here now, but I will try to get her to look at your post in the next few days if you are interested. She does not like (nor is she qualified to give) medical opinions, but she just might tell me what she thinks. She would probably at least tell me if she thinks I am all wet, but I have an idea she would agree with me on this. If you do have to appeal, I suggest you apply for an advance on the docket (if you go back to the BVA), since congestive heart failure is very, very serious..and life threatening. IMHO "congestive heart failure, ejection fraction 36%" and "mild" should not be used in the same sentence together.

I dont know, Berta, maybe we could post the exam questionaire for PTSD, and the Vet could print it off and give it to his private Doc, since the VA apparently wont make it available online. I have to say I tend to agree with retiredat..Shinseki seems to have made more promises than what he can ever possibly deliver on. His newest is that he is going to break the backlog this year. Did he count? There are only 2 months left of this year, and we have a major holiday in Nov and Dec, so if Shinseki only made the backlog worse his first 20 months, I highly doubt that he will fix it in the next two months. If he does, great, but I think I have a better chance of winning the lottery than getting my claim done this year. My guess is the earliest I can realistically expect my claim to go through the BVA is year 2014, and even then, it will probably be remanded to the RO and take still longer.