Bva Denied My Smc For 100% + 60% "s" Award . . .

[Philip Rogers]

Just to clarify some things. This claim has been under constant prosecution since 1999. I was originally awarded 30% for PTSD, in 1989. I appealed, eventually getting 50%, then 70%, then TDIU in 1997, and then in 1999. I finally won my appeal retro to 1989, getting 100% schedular for PTSD, alone. At that time I was denied HB & A&A (as inferred issues) At about 11 months after the decision, I applied for HB, figuring I was essentially HB because I rarely left my house, due to the anxiety it caused. I've never applied for "agoraphobia," however do believe I have it. If the claim is won, it will/should go retro to 1989, which "I believe" is part of the reason they continue to deny.

In 2010 they added the additional disabilities, which total 60%, using simple addition. We should not discuss simple addition vs the combined ratings table in my case, as the court needs to decide that issue and I am headed there.

Much of their reasons and bases are false. I've had a pin in my knee since 1971 (after a suicide attempt - m/c vs auto) and haven't had a "normal gait" since 1971 and about 12 yrs ago was told I need a knee replacement. My gait these days is akin to Walter Brennan, in the TV show he had yrs ago. As for walking I doubt I could do 200 yds, w/o much pain and resting every 30-40 yds. I don't fly!!! I have a severe fear of crashing, so I don't. Probably relates to my having to jump outta my first plane rides (yup, Airborne, all the way) Duh!!!!

The important part to me, is that I could "lie" and win but I am always truthful, to a fault. So their calling my credibiliy at issue really irritates me, especially when they accept everything else, "if it's favorable to them."

We'll see what happens.

pr

I also need to add that I was found TDIU in 1997 and again in 1998, by a DRO, but my 1999 retro win, for 100%, superseded those TDIU awards and made them a non-decision or moot. There are numerous other errors they make but I'm not going to take the time to spell them out here. Please note that the BVA judge specifies I have been "unemployed" versus "unemployable," even tho there are many references to me being unemployable by my counselors and caretakers. In fact, enough that the original BVA judge awarded me 100%, in 1999, due to those statements. I was found 100%, for PTSD, based on the 38 CFR 4.16©, that was in effect prior and changed on 10/8/96, as when a rule changes, during the appeal process, the claim is adjucated based on the rule that is most favorable to the claimant.

Edited March 12, 2012 by Philip Rogers

[Berta]

I need to highlight what Wings posted -

Wings is correct as to the "or" part of the regs for anyone out there reading these posts and I am glad she clarified this for everyone.

If the disabilties aren't matched to the 60% additionals the VA defines,then VA also considers HB.

My long rendition on my husband didnt make my point well. Sorry .

He was denied for the HB but granted the S due to additional 100% SC disability.

I am surpprised the court has not clarified this issue already- but maybe no vet challenged this at CAVC yet and Philip will be the first one!

[Philip Rogers]

Wings - thanks for noting that "substantially" info. Technically, to my knowledge, there is no legal definition for the word substantially, that is that I can find. I'm going to contact Bergmann & Moore, or whatever their name is, this week. Time to leave it for the lawyers. At worst I lose and if I win I get between $1 and $60k+. I've a better chance of winning w/the VA than I do any lottery, which I play about twice a yr.

pr

[Teac]

Mr. XXXXXXX maintains that the examiner who conducted his aid-and-attendance/housebound- status

examination failed to consider whether he is permanently housebound because of his service- connected disability or disabilities as required under 38 C.F.R. 3.350(i)(2) (2005). App. Br. at 18. Under 3.350, a claimant may receive SMC if he or she has a single service-connected disability rated as 100% and is permanently

housebound by reason of service-connected disability or disabilities. 38 C.F.R. 3.350(i). A claimant is considered " permanently housebound" when he or she "is 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 C.F.R. 3.350(i)(2) (emphasis added).

In Mr. xxxxx's case the examiner stated: The frequency and under what circumstances the veteran is able to leave the home or immediate premises is significant for occasionally he goes out to eat with his mother and he rides down to the supermarket at least once a week and waits in the car because he avoids crowds. He occasionally drives to group [therapy, and] often car pools with other individuals.

R. at 1407. The examiner failed to discuss whether Mr.XXXXXX was "substantially confined" to his home as contemplated under 3.350(i)(2). Therefore, the examination for SMC was inadequate, and as such, Mr. xxxx's SMC claim must be remanded so that VA may provide him with an adequate aid-and-attendance examination. See Green, Hicks, and Suttman, all supra.

The above is the remand order concerning Housebound/Aid and Attendance exam.

Just a couple of things that I take away with this reading.. and please keep in mind I am not an expert by any means and I may not understand it as it was ment to be understood.

1. The issue of an additional 60% rating added or combined ( over the 100%) was never addressed either by the BVA or by the veteran. It appears this issue was not raised until the regional office had reviewed the claim and denied it a second time (that is when it was reviewed on remand.) This leads one to believe that the claim concering adding vrs combining the additional disability was a clever attempt to keep the claim alive.

Unlike bradley v peake where the va decided to rewrite laws that prevented a veteran from receiving housebound when awarded TDIU, there does not appear to be any re writes or changing of law concerning the combined rating guidelines.In fact the va is not the only agency that uses the whole man concept when considering disability rates and compensation, all private insurance companies do the same thing and it is a legally accepted practice.

Also keep in mind the va recognizes that additional disabilites over 100% present a greater burden to the veteran,but they have decided the greater burden begins at the combined rating of 60% and not before. Once again, Since there is nothing in va law that ever allows disability to be added by normal math, this arguement will have to be decided by the courts, but I sincerely doubt the courts will decide this specific question in favor of the veteran. Frankly, I can't help but think it is one of those " toss at the wall and see what sticks" arguements because I for the life of me can't see the validity of the arguement to begin with.

2. The second point I wanted to make, was that it appears to be the BVA was very liberal, when it decided that the housebound/A&A claim was to be remanded, stating the examiner failed to discuss whether Mr.XXXXXX was "substantially confined" to his home.

Now I stated the BVA was liberal because the examiner also stated , "The frequency and under what circumstances the veteran is able to leave the home or immediate premises is significant" This leads me to think that while the examiner is stating that the veteran is not housebound because he is able to leave the home often and under condtions other than just for medical care.

So, any reasonable person could read the two statements and come to the conclusion that the examiner did in fact address how " substantially confined" the veteran was.. by stating "The frequency and under what circumstances the veteran is able to leave the home or immediate premises is significant".

Please understand I am not a lawyer and often times the va language trips me up.. I am just expressing that I think the va was liberal in granting the remaind. ( I think had it been adjudicated by another judge it would not have been remained) and when upon review by the regionl office the benefit was again denied.. the veteran was creative and presented a whole new arguement concerning the adding of vrs combining of disability because there were no other arguements that could be made.

[Teac]

Wings - thanks for noting that "substantially" info. Technically, to my knowledge, there is no legal definition for the word substantially, that is that I can find. I'm going to contact Bergmann & Moore, or whatever their name is, this week. Time to leave it for the lawyers. At worst I lose and if I win I get between $1 and $60k+. I've a better chance of winning w/the VA than I do any lottery, which I play about twice a yr.

pr

http://www.thefreedictionary.com/substantially

sub·stan·tial (sb-stnshl)

adj.

1. Of, relating to, or having substance; material.

2. True or real; not imaginary.

3. Solidly built; strong.

4. Ample; sustaining: a substantial breakfast.

5. Considerable in importance, value, degree, amount, or extent: won by a substantial margin.

6. Possessing wealth or property; well-to-do.

n.

1. An essential. Often used in the plural.

2. A solid thing. Often used in the plural.

[Teac]

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Teac, Play nice. Go to a law library and define "substancial". Better yet, see if the veteran's Court has decided the issue. I cited Roberson vs. Principi, and I think that definition is holding ... ~Wings

Wings, really......

why the play nice comment all I did was post a definition. and I fail to see how a law library would define the word any differently