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

[carlie]

Concerning Pete's claim the HB issue would be due to the SC'd agoraphobia.

Question:

Couldn't that fall under:

" 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)."

carlie

[Philip Rogers]

Pete's should be a shoe-in, especially since they've awarded it currently and didn't decide the issue as an inferred issue when he was first awarded 100% schedular. He could pursue it as a CUE but I think it should still be an open claim. Anyway, should be money in the bank! jmo

pr

[Berta]

Every time the VA awards 100%-whether TDIU or 100% schedular-they are supposed to consider entitlement to SMC and give reason why they did not award it.

A vet should get out the 100% award letter, and see how the reasons they gave at the time- can be combated with medical evidence to award SMC.

If the appeal period is over they can file a CUE claim on this.

I have 2 CUE claims because the VA failed to award my husband SMC when the medical evidence of record clearly showed he was eligible for it.

I first claimed in 2004 -that the award letters I received in 1997 and 1998 failed to consider SMC as an accrued benefit and that it was still an open issue.

Then VA stated that he was "not eligible for SMC consideration under any circumstance."

VA case law itself says they are wrong.

I sent plenty of VA case law to prove my point.

If the VA fails to consider SMC in a 100% award -cite:

M21-1 Part VI March 19,2004 Change under 3.09 Issues and Erratum M21-1 Part Vi-under 3.10 (a) (;)

If they considered SMC but gave a reason for not establishing SMC- the reasons have to be challenged under other VA case law and regs-if a CUE is needed due to the appeal period-

In Pete's case it seems to me he can challenge them because they used the age factor of Hartness per his post and not the other applicable provisions of SMC.

Philip is right-

"He could pursue it as a CUE but I think it should still be an open claim."

I drew VA out on the open SMC claim idea and got their statement that Rod was not eligble for SMC-therefore I had to CUE to prior final decisions.

But I wondered in 2004 if in fact "accrued benefits" only involved what they owed the vet at time of death as SC without the SMC factor. I found in the VBM the reg that states a widow or widower is due ALL accrued benefits to include SMC and made sure the VA knew that too.

Edited October 30, 2007 by Berta

[Pete53]

Berta:

You are pursuing 2 CUE Claims at the same time. I actually feel that I have another CUE in the fact that although I was awarded SSD effective March 1991 for Panic Disorder the VA made my effective date Nov 1993. I filed June 1991.

I am mulling over what step to take next. Fortunately I am not in the same position that I was in 1991 to 1995 and no rush to do this right.

To all who have responded I cannot tell you how much I appreciate all the comments. It has been a big help and makes me feel confident that if I don't give up I can win.

Hadit is a real blessing.

Pete

[Berta]

CUEs arent easy to win but many do succeed-I just found this 2007 BVA decision-it could help you shape your CUE claim-:

http://www.va.gov/vetapp07/files1/0706616.txt

"ORDER

The June 1987 decision denying the veteran's claim of

entitlement to service connection for PTSD was the product of

CUE. An effective date of June 11, 1986 is assigned for

service connection for PTSD. The appeal is allowed to that

extent."

[Pete53]

Today I worked on my Form 9. My appeal basically says Social Security Disability was awarded with April 1, 1991 as the effective date. I plan to enclose a letter from Social Security informing the VA my effective date and ask that my HB and my 100% EED be matched to Social Security determination.

I pointed out that the VA diagnosis is for panic disorder with agoraphobia and it should match Socail Security or the date I filed VA Claim.

I did not say CUE but I asked that the VA correct my award.