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

[Wings]

x

x

x

http://www.va.gov/ve...es3/1028010.txt

For purposes of housebound benefits, the Court has held that

being "substantially confined" to the home means an inability

to leave to earn an income. Absent a regulation by the Secretary

defining the term "substantially confined," the Court held that

the term may conceivably be more broadly construed. It found

that Congress intended to provide additional compensation for

Veterans who were unable to overcome their particular

disabilities and leave the house in order to earn an income, as

opposed to an inability to leave the house at all. Hartness v.

Nicholson, 20 Vet. App. 216, 220-22 (2006); cf. Howell v.

Nicholson, 19 Vet. App. 535, 540 (2006)

x

x

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 04-0624

Robert L. Howell, Appellant,

v.

R. James Nicholson,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans' Appeals

(Decided March 23, 2006)

Because the meaning of the term "substantially confined" is ambiguous

and there is no regulatory interpretation, "the Court must determine the

meaning" of the term "and the Board's obligation" thereunder. Thompson v.

Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both

supra.

The Secretary submits that the clear implication of this term is

that the requirement that one be "substantially confined" is met when the

claimant is restricted to his house except for medical treatment purposes.

The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes

that in passing section 1114(s) Congress intended to provide additional

compensation for veterans who were unable to overcome their particular

disabilities and leave the house in order to earn an income --as opposed to

an inability to leave the house at all.

Accordingly, we hold that leaving one's house for medical purposes cannot,

by itself, serve as the basis for finding that one is not substantially

confined for purposes of SMC-HB benefits, and the Board's interpretation

of section 1114(s) to preclude the grant of SMC benefits on the basis of

Mr. Howell's leaving his house in order to attend VA medical appointments

was erroneous as a matter of law.

Accordingly, we hold that leaving one's house for medical purposes cannot,

by itself, serve as the basis for finding that one is not substantially

confined for purposes of SMC-HB benefits, and the Board's interpretation

of section 1114(s) to preclude the grant of SMC benefits on the basis of

Mr. Howell's leaving his house in order to attend VA medical appointments

was erroneous as a matter of law.

Edited March 11, 2012 by Wings

[Philip Rogers]

Teac - That's a standard definition for "substantial" but I cannot find a "legal" definition. So would substantial be more that 50% of the time? 70%? 80%? 90%? Let's say based on 90% of the time, that would be 21.6 hrs of each day. So, a HB claimant could spend 2.4 hrs away from their home daily, or 15+ hrs weekly, and still be substantially HB. Just because someone is able to attend occasional medical appointments, weekly PTSD group sessions, shop once weekly and maybe eat out every 2 wks does not make them "not housebound." How about working?? Part of the HB issue is the ability to leave the house/home and earn a living. That would need to be 40 hrs a wk. Just by definition a 100% schedular evaluation includes the inability to work or adjust to a worklike setting.

Just for curiosity sake, have you ever worked "for" the VA, not that it matters?? Just curious, as you sound like someone who has. No offense intended!

Thanks,

pr

[Philip Rogers]

Thanks again, Wings!!! You found the case I'd been looking for!

pr

x

x

x

http://www.va.gov/ve...es3/1028010.txt

For purposes of housebound benefits, the Court has held that

being "substantially confined" to the home means an inability

to leave to earn an income. Absent a regulation by the Secretary

defining the term "substantially confined," the Court held that

the term may conceivably be more broadly construed. It found

that Congress intended to provide additional compensation for

Veterans who were unable to overcome their particular

disabilities and leave the house in order to earn an income, as

opposed to an inability to leave the house at all. Hartness v.

Nicholson, 20 Vet. App. 216, 220-22 (2006); cf. Howell v.

Nicholson, 19 Vet. App. 535, 540 (2006) (substantially confined

means the inability to leave the house except in instances of

seeking medical treatment).

[Wings]

Thanks again, Wings!!! You found the case I'd been looking for!

pr

Read my post again, on edit I added No. 04-0624 Robert L. Howell v. Nicholson (2006) ;-) ~Wings

[Teac]

Teac - That's a standard definition for "substantial" but I cannot find a "legal" definition. So would substantial be more that 50% of the time? 70%? 80%? 90%? Let's say based on 90% of the time, that would be 21.6 hrs of each day. So, a HB claimant could spend 2.4 hrs away from their home daily, or 15+ hrs weekly, and still be substantially HB. Just because someone is able to attend occasional medical appointments, weekly PTSD group sessions, shop once weekly and maybe eat out every 2 wks does not make them "not housebound." How about working?? Part of the HB issue is the ability to leave the house/home and earn a living. That would need to be 40 hrs a wk. Just by definition a 100% schedular evaluation includes the inability to work or adjust to a worklike setting.

Just for curiosity sake, have you ever worked "for" the VA, not that it matters?? Just curious, as you sound like someone who has. No offense intended!

Thanks,

pr

Philip,

No offense taken...

You make a good point I never considered the meaning of the word it the way you have described it.

As to your last question, no I have never worked at the VA. I just look at an issue and try not to be bias one way or the other and offer an opinion. I really try to be very open minded and understand both sides of an issue and most times I learn something in the process as I have done here. Sometimes I may upset someone, but I try to word things in a way that may not offend, most times I think I do ok, other times usually in hindsight I sometimes fail.

I just find your case to be very interesting and in trying to understand it better, I have bounced a few of my ideas back at the board.

[Philip Rogers]

Again, thank you!! Just think how many claims should be re-adjudicated, just based on this case!

pr

Read my post again, on edit I added No. 04-0624 Robert L. Howell v. Nicholson (2006) ;-) ~Wings