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

[broncovet]

Congratulations, PR!

Well, maybe. This remand will give you the chance to submit new evidence and have it considered at the beginning of the appeal period per 38 CFR 3.156 b. The Board knows the CAVC is "watching" and will, at a minimum, provide an adequate "reasons and bases" for denial, or, better yet, award the benefit sought. I really cant think of a good excuse to deny on remand. You either meet the "100 plus 60" criteria or not. However, as you probably know there are "2" routes to SMC S (housebound)

1. The "100 plus 60" as in Bradley vs Peake

2. Housebound "in fact". This usually means a C and P exam for the doc to determine if you are "housebound in fact".

Source:

Compensation and Pension Service Fast Letter 09-33:

Special Monthly Compensation at the Statutory Housebound Rate

38 U.S.C. § 1114(s) provides that SMC at the (s) rate will be granted if a veteran has a serviceconnected disability rated as total, and (1) has additional service-connected disability or

disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by

reason of a service-connected disability or disabilities. VA’s implementing regulation at 38

C.F.R. § 3.350(i) essentially mirrors the statutory language.

Prior to the CAVC’s decision in Bradley v. Peake, VA excluded a rating of total disability based

on individual unemployability (TDIU) as a basis for a grant of SMC at the (s) rate. VA relied

upon language in citing VAOPGCPREC 6-99, dated June 7, 1999, in which the General Counsel

stated that a TDIU rating takes into account all of a veteran’s service-connected disabilities and

that considering a TDIU rating and a schedular rating in determining eligibility for SMC would

conflict with the requirement for “additional” disability of 60 percent or more by counting the

same disability twice.

On November 26, 2008, the Court, in Bradley v. Peake, disagreed with VA’s interpretation and

held that the provisions of section 1114(s) do not limit a “service-connected disability rated as

total” to only a schedular 100 percent rating. The Court found the opinion too expansive because

it was possible that there would be no duplicate counting of disabilities if a veteran was awarded

TDIU based on a single disability and thereafter received disability ratings for other conditions.

The Court’s holding allows a TDIU rating to serve as the “total” service-connected disability, if

the TDIU entitlement was solely predicated upon a single disability for the purpose of

considering entitlement to SMC at the (s) rate.

The Court held that the requirement for a single “service-connected disability rated as total”

cannot be satisfied by a combination of disabilities. Multiple service-connected disabilities that

combine to 70 percent or more and establish entitlement to TDIU under 38 C.F.R. § 4.16(a)

cannot be treated as a single “service-connected disability rated as total” for purposes of

entitlement to SMC at the (s) rate.

Based on the Court’s decision in Bradley, entitlement to SMC at the (s) rate will now be granted

for TDIU recipients if the TDIU evaluation was, or can be, predicated upon a single disability

and (1) there exists additional disability or disabilities independently ratable at 60 percent or

more, or (2) the veteran is permanently housebound by reason of a service-connected disabilit

[Philip Rogers]

Bronco - the original claim is for the inferred issue, when I was awarded 100% and they denied it, even tho my two counselors found me and stated I was HB. Since then, 2 yrs ago I met the 100+60, using ordinary addition and that's under appeal. The first issue is the one being remanded.

pr

Damn Flip - your moving quicker than Beverly did !

Carlie - don't know Beverly, unless she's a storm?

pr

[carlie]

Carlie - don't know Beverly, unless she's a storm?

pr

Nehmer - and she was one hell of a storm !

[Philip Rogers]

Nehmer - and she was one hell of a storm !

Ahhhhh! Yes, she was!!!

pr

[broncovet]

PR...Ok, that makes sense..you are seeking HB for both HB in fact and the 100 plus 60 criteria, since you allege both. I would "scream like a stuck pig" if I got a denial that did not address BOTH of these. I have seen, more than once, the VA just "not address" issues...both the RO and the BVA.

I think they call it "top sheeting"...they just look at the top sheet then deny and dont read the whole thing. This helps VA employees meet quotas. Vets only defense to "top sheeting"...is to make sure the "top sheet" includes all our issues.

Hurricaine Nehmer was a doozie. I was standing right by my black and white nexus when she arrived. This storm was so powerful, it managed to penetrate the VARO, locate my evidence out of millions of files, and blow critical evidence directly into the shredder bin, all so quickly it was undetectable by anyone except very desperate politicians.

This powerful hurricane Nehmer also was able to alter mental states of VA employees, causing them to do things like appoint criminal fiduciaries to Vets not needing a fiduciary. It further caused other VA employees to go to throw wild, expensive parties for other employees. It also prevented Sec. Shinseki from meeting his 2010 backlog reduction deadline, and shifting it to 2015. I sure hope its over.

[john999]

This is great because CAVC is even more hard assed than the regular VARO or BVA.