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

[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

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Section 902 Definition of the Term Disability

Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008

902.4 Substantially Limits

(a) General -- Unlike the term "major life activities," the term "substantially limits" frequently requires extensive analysis. The term "substantially limits" is a comparative term that implies a degree of severity and duration. The primary focus here is on the extent to which an impairment restricts one or more of an individual's major life activities. A secondary factor that may affect the analysis is the duration of the impairment.<a href="http://www.eeoc.gov/policy/docs/902cm.html#fn20">²⁰

When analyzing the degree of limitation, one must remember that the determination of whether an impairment substantially limits a major life activity can be made only with reference to a specific individual. The issue is whether an impairment substantially limits any of the major life activities of the person in question, not whether the impairment is substantially limiting in general. Thus, one must consider the extent to which an impairment restricts a specific individual's activities and the duration of that individual's impairment.

(b) Regulatory Definition -- Commission regulations define the term "substantially limits" and outline factors to consider when determining whether an impairment substantially limits any of an individual's major life activities. In that respect, the regulations state,

(1) The term "substantially limits" means:

(i) Unable to perform a major life activity that the average person in the general population can perform; or

(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

(2) The following factors should be considered in determining whether an individual is substantially limited in a major life activity:

(i) The nature and severity of the impairment;

(ii) The duration or expected duration of the impairment; and

(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

29 C.F.R. § 1630.2(j).

[Philip Rogers]

Thanks, Teac!! Of course, I tend to be a little biased about my claim but when you see how they word the denial, it's hard not to be. I do agree I'm not bedridden, nor blind. I can brush my teeth, wipe parts of my body that need that, for the most part dress myself, however I don't keep myself as clean as I used to, nor do I change my clothes as frequently as I probably should. I have hearing aids, that I rarely use, as they are difficult for me to install, when I do remember them. My medication schedule is frequently forgotten w/o me being reminded. I never "play" on the computer. When I'm on the computer, it's either here, at Hadit, or researching for another vet, or just responding to emails. Their argument just doesn't hold any water.

Thanks for your opinion(s)!!!

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.

[Teac]

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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)

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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.

Wings,

thanks,

Based on the case above, one could then say that just by being awarded TDIU , the veteran should receive Housebound benefits. After all, TDIU does not preclude one from leaving the home, it just precludes one from leaving the home to work.....

I also noted this was the boards interpretation.. and that is part of the problem as different people have different interpretations and one vet may win a case and another lose based on diffferening judges opinions......

[Teac]

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

pr

My initial reaction as well......

[Philip Rogers]

My BVA decision link: http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp99/files3/9926102.txt

pr

[Teac]

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The total rating (100% Schedular or 100% TDIU) must be "permanent". ~Wings

See 38 CFR 3.351, "permanent and total plus 60 percent" or ‘‘permanently housebound’’ by reason of disability or disabilities. This requirement is met when the veteran is substantially confined to his or her dwelling ... and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. (Authority: 38 U.S.C. 1502(c ) 1521(e))

yes I know this..... thanks again