tdiu Smc An Issue

[Berta]

As you know the VA has consistently denied any SMC consideration as accrued benefit in my husband's case.I have SMC 2 CUEs pending for last 5 years that they keep sending me the same SSOC on.

But my recent award means in spite of their past errors on this-they have to resolve this issue anyhow -and now -not do to SMC 1151 but due to direct SC disabilities- totalling at least 300%.I am aggressively fighting that point with them.

I feel this is important info we should have-

NVLSP makes the point that M21-1 Mandates adjudicators to infer and consider SMC whenever the medical evidence warrants it.

A mandate is a 'have to' and yet it is more one thing the VA can fail to do properly.

I am beginning to think that since inferred SMC actually requires the VA to consider all medical evidence after they make direct or 1151 100% award or a TDIU award-

this additional review of the medical evidence for SMC purposes probably isn't even done.

Also I bet many vet reps do not realize that 1151 awards also come under the SMC criteria.

A local vet I helped got 100% under 1151 and an additional SMC award under 1151-they messed him up medically and probably shortened his life.

There are a few widows claims at BVA for accrued SMC under Nehmer-

and very few 1151 and SMC claims.

In one letter I received years ago the SMC consideration was denied because they said the veteran didnt ask for SMC.

He couldnt -he was dead already and besides that-SMC consideration is Mandated when the medical evidence warrants it-so most if not all veterans should not have to request SMC at all.

Hope this all makes sense-I just get livid over the crap the VA can state in their letters to us which is often not based at all on fact or established VA case law.

And if we buy what they are selling-without challenging them- we have lost $$$$$.

[john999]

I don't read it that way with TDIU+60% as being inferred HB. I read 100% for one disability and 60% for another as inferred HB. I think if you are 100% schedular the VA is "supposed" to consider you for HB. They never seem to do that, however. If you have a disability that makes you housebound then that is a different case. For instance, say you have agoraphobia. That is by definition HB. Please post the regulation that says TDIU+60% is inferred HB. I don't think there is such a thing as TDIU plus 60%.

[donnieragsdale]

It was this portion of Teac's post that prompted my discussion and question.

"This was again decided in Bradley v Peake Court of appeals for veterans claim No 06-854 decided on 26 Nov 2008. The court decided that a TDIU rating does not exclude a veteran from the SMC housebound when the veteran has an additional seperate 60% rating or can show actual housebound. It also stated that a seperate claim is not required that the va must "maximize benefits"

[john999]

Hmmm......then there are going to be a lot of claims for HB when this becomes common knowledge. HB is like 295 bucks but it is money and I wouldn't mind collecting since I fit that description twice in the court decision. This should be plaster over the internet because their are many IU vets out there who might qualify.

[Teac]

Hmmm......then there are going to be a lot of claims for HB when this becomes common knowledge. HB is like 295 bucks but it is money and I wouldn't mind collecting since I fit that description twice in the court decision. This should be plaster over the internet because their are many IU vets out there who might qualify.

John,

If you read the case at hand or the va opinion from 1994.. you will get a better understanding.. I found the case a while back, but did not think it appplied to me untill I read the case over and over, and then researched the cited references within the case...

It does say that the congress did not exclude any form of total disability from award of the SMC. It goes on to say that the VA must award housebound in cases of TDIU when there is a seperate 60% rating or a factually housebound of a veteran. the 1994 referrence also indicates that a temporary total rating qualifies for the housebound SMC..

Yes there should be a lot of CUE or NOD's generated because of this... In my case I determined that VA owes me just under $18K. Hell that is a lot of money to ignore.. in my case It would pay off my house, and have a little left over for some extra gifts for my grandchildren....

What gets me is that when ever you research housebound on the va cite, these references don't pop up and all you can find is the information that states you must have a single 100% rating to qualify. Since this has been wrong since at least 1994 the va needs to update the information on the web cite.....and veterans reprensatives need to do a better job of reviewing the General Counsel Opinion when they are published.

This is just like the clothing allowance, when one veteran gets more than one clothing allowance and the darn DAV says you have to be an amptuee to get the second clothing allowance.. bull it applies to everyone.... and teh PVA, DAV, and AL in my area still say you can only get one clothing allowance....

I degress......

[Teac]

Had an in depth discussion with Crusier at VBN concerning this court case. It is his opinion that while the court said there never was a bar to a veteran getting Housbound if the veteran was TDIU, that the only person who will benefit from the case was the veteran who took it too the COVA. He explained that the court did not make it a retroactive judgement. IN other words, he said that if a claim was denied in the past and it was not appealed then your just out of luck. He went on to say that such a claim could not be won on CUE, because the raters were only following the rules that were in place at that time. My arguement was that even if the va says there was a bar, there was no legal bar, that the law did not change, since the court affirmed that such a bar did not exist. He was in agreement that from Oct 08 when the decision was made if a veteren is TDIU for one condition and has a seperate 60% for another condition, or can show factual housebound, that a claim of Housebound would now be approved.

I sent my cue claim in on saturday, guess we will see who is correct... ]

anyone with any different or new thoughts?

[Pete53]

Cruiser has been wrong before. The VA has been wrong on Housebound before but what I get is that this particular court case really is limited to a Vet over 65 who was also on a pension.

Its not so much the COVA Case its the way the regulation is worded empathsis on Part B.

IF THERE IS cue AND i BELIEVE THERE IS YOUR BURDEN IS TO SHOW THAT THE va DID NOT RATE YOU BY THE cfr

Sorry for CAPS but I am not going to type it over.

I sincerely hope that you win the claim I have one on same issue coming up the pipe.