Decision On Earlier Effective Date

[Pete53]

My DRO Hearing for EED was denied in 6 days. In a nutshell the DRO ruled that Hartness V Nicholson applied only to Veterans over 65 and in no way applies to me.

I intend to fill out a form 9 and appeal but I am a little discouraged. I did not read Hartness as applying to a particular sub set of Veterans maybe I can't read.

Pete

[john999]

Using a case that has nothing to do with your claim to deny means to my mind that the VA does not have a good defence. They are just trying to muddy the waters. They probably want to pass the buck. They want someone in a higher pay grade to make the decison to CYA.

[Pete53]

I brought up Hartness and cited it at my Hearing. I also tried to prove that my Housebound with agorophobia should have been considered when making my 100% award in 1996. Althought there is testimony there was no mention of any thought or rationale for not considering that the denial basically was trying to treat Hartness like a hot potato that only affected Vets over 65.

I am at a loss as to why Vets over 65 would be treated differently than younger Vets?

[Philip Rogers]

Peter and Berta - Here's the link to that case that originally made me bring up the Hartness decision, here, some months back. I think RickB54 disputed it w/me and at that time I was unable to post the link, as the BVA hadn't posted it yet. You'll note the BVA brings up the issue of "leaving one's house to earn a living" in their remand and the vet is receiving comp not pension. http://www.va.gov/vetapp06/files5/0634442.txt

I believe Hartness broadens the definition of housebound and could apply to those receiving TDIU. jmo

Here's the full quote: "Recently the Court has clarified that housebound benefits are

payable where the pertinent disabilities cause the veteran to

be substantially confined to the home or its immediate

premises, and that this requirement is met when the veteran

is unable to leave the home to earn a living. Hartness v.

Nicholson, 20 Vet. App. 216 (2006)."

pr

Edited October 28, 2007 by Philip Rogers

[Berta]

I see what you mean Philip- you are correct- but I was stuck on this in an older post:

"My DRO Hearing for EED was denied in 6 days. In a nutshell the DRO ruled that Hartness V Nicholson applied only to Veterans over 65 and in no way applies to me."

Pete- did the VARO state this exactly as you posted - in their decision?

If so you can ask them to CUE themselves.

Philip is correct but I dont see why they used the age factor of Hartness (this was a SMP claim) and as John said they have totally misinterpreted the point as to HB.

This 2007 BVA decision shows the actual HB regs:

"III. Special Monthly Compensation at the Housebound Rate

from:http://www.va.gov/vetapp07/files1/0707465.txt

If I were you I would ask VARO to CUE their decision and refer them to this reg- and attach it.

A veteran may receive special monthly compensation at the

housebound rate if he has a service-connected disability

evaluated at 100 percent disabling and has either additional

service-connected disability or disabilities independently

ratable at 60 percent which are separate and distinct from

the 100 percent service-connected disability and involving

different anatomical segments or bodily systems or is

permanently housebound by reason of service-connected

disability or disabilities. Permanently housebound is

defined as "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 U.S.C.A.

§ 1114(s) (West 2002); 38 C.F.R. § 3.350(i) (2006). Ralston

v. West, 13 Vet. App. 108, 112 (1999)."

Edited October 28, 2007 by Berta

[Philip Rogers]

Berta, I think the VA is just avoiding the issue, by stating the misinformation about 65yo's and pension, hoping the claimant will be discouraged and not pursue the claim. They do provide disinformation, frequently. Peter should pursue it. It may have to go to the court again, since the OGC hasn't clarified it. That fast letter is BS and doesn't really discuss the issue. jmo

pr

[Berta]

I sure commend you Philip for all the help you give to vets here-

and didnt mean to suggest you did anything wrong-you didnt-

I agree with you completely-

it was a VA interpretation to simply wriggle out of the claim-

This happened to me recently-

The VA kept focusing on a claim I have that had some fairly good medical support yet they kept overlooking the prior claim that had the MOST medical evidence.

It was a VA battlefield maneuver- disrupt-distract- confuse-

I go to a war school -that VA crap didn't work on me at all.

Pete has to fight this- it isnt a fair or even a sensible VA decision.

I think it is good that we are discussing this here because I often wonder how many vets get decisions like this- where the VA itself has confounded the issue.

But they often have foot in Mouth disease and I always use whatever they say against them whenever I can.

Good example- I felt that my re-open of my husband's 1995 1151 claim is still an open claim as to the PTSD issue. The VSM in a letter to me last year stated all the components of that claim were resolved so I wrote back and said OK- where is the direct SC award then....

This came up recently again and I used the VSMs statement in support of that claim.

Still these issues are not nearly as well supported medically as my AO death claim is.I had chance recently to again point all that out to the DRO.

I expect a decision soon.

Edited October 28, 2007 by Berta