tdiu Smc S, Tdiu, And Not Necessarily Bradley Vs Peake

[broncovet]

As most experienced Vets advocates know, the Va consistently denies TDIU claims "as moot" when ever a Vet reaches 100% schedular. Of course, vets advocates are also familiar with Bradley vs Peake which explains that TDIU can count toward the famous "100 plus 60" statuatory housebound, making a Veteran entitled to SMC S "housebound".

Buie further clarified that it did not matter which order it happened...TDIU first, 100 % schedular first...etc., that, if the Vet meets the 100 plus 60 then he is entitled to SMC S for housebound, even if the Veteran is not "housebound in fact". (HIF)

HIF is the second method by which Veterans can get SMC S, and normally requires a "nexus" in that the doctor states, to the effect, your SC conditions are the ones that caused your housebound.

The important portion of Buie, or Howell, may be that "housbound" does not mean you cant get out of the house. No. It means you cant get out of the house "for work".

(below is Howell vs Nicholson CAVC 04-0624 March 23, 2006, available here: https://asknod.wordpress.com/2014/08/16/smc-s-attempting-to-cue-old-tdiu-decisions/

Permanently Housebound Status – 38 U.S.C. § 1114(s)

SMC-HB benefits will be paid to a veteran who, "by reason of such veteran's

service-connected disability or disabilities, is permanently housebound." 38 U.S.C. § 1114(s); see

also 38 C.F.R. § 3.350(i)(2). The term "permanently housebound" is further defined as being

"substantially confined to such veteran's house . . . or immediate premises due to a service-connected

disability or disabilities which it is reasonably certain will remain throughout the veteran's lifetime."

Id. The term "substantially confined" is not defined by statute or regulation. See id.

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. Mr. Howell does not contest this

interpretation.

To the extent substantial confinement does not include departures for medical purposes, we

agree that the interpretation that the Secretary presents in his supplemental briefing is reasonable and

consistent with statute and regulations. See Jackson, Thompson, and Cropper, all supra.

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.

end of Howell quote.

My question is have Vets experienced cases where VA denies TDIU as moot when, in fact, TDIU can make the Veteran eligible for SMC S Housebound??

[Chuck75]

"My question is have Vets experienced cases where VA denies TDIU as moot when, in fact, TDIU can make the Veteran eligible for SMC S Housebound??"

Yes thay have.

I was in this situation starting some time ago and for several years. After a Nehmer review, the VA considered TDIU "moot", since there was a 100% P&T schedular single rating among the rest. The Nehmer review board decision involved quite a bit of retro. In the intrem between then and until very recently, it seems that the VA failed to even consider SMC S. Compounding things was that the VA had sent notice of various claim decisions that did not include complete listings of previous SC'd conditions.

E-Bennies was just as bad. When I went to the trouble of E-Filing a claim, as suggested by others,

E Bennies eventually did provide a complete listing. This made the VA's error rather obvious. The remaining fight will be over an earlier EDD for the SMC award, and a couple of rather obvious other

SMC related errors.

Edited December 9, 2014 by Chuck75

[broncovet]

Thanks, Chuck. I was thinking I made my question too complicated to answer.

This is what VA did to me...the RO decided TDIU was moot. The Board, however disagreed, and specifically said that TDIU was "not moot" because of that and because an award could result in an eed, since I applied for IU before the effective date of the 100% schedular.

Now, the problem is the RO simply failed to implement this portion of the Board decision. The board decision was lengthy..about 30 pages, and the RO RSVR did not want to read it.

I also think the Board decision was CUE, because the Board "remanded TDIU for RO to issue a SOC"...that is crazy. This is directing the RO to deny my claim again and send it to the board, since an SOC only occurs in a denial! If the board wants it denied, they can deny, they dont have to remand it for a denial. I beleive remanding for an SOC assumes a RO denial and adversely predjices the RO on denial of the Veterans claim.

Do you have cases where this happened (BVA or CAVC)? Sometimes my search abilities are good and sometimes not so good. VBM would also be great!

I dont know what my remedy is: I have filed a NOD on the RO decision which failed to implement the Board decision, but that isnt going anywhere. Im considering:

1. An email to Bob, explaining the RO failed to implement board decision.

2. A letter to chairman at the BVA also explaing the same, that it is CUE for the board to allow non compliance with board decision by RO.

3. A writ of mandamus asking the cavc to compel compliance with board decision.

Which of these choices do you recommend, or do you have alternatives?

Edited December 9, 2014 by broncovet

[Chuck75]

In my case, Nehmer took almost everything back to the date of claim. To get an earlier EDD for SMC back to that date, I'd have to use the inferred claim path, and, at this time, I don't know if there is enough evidence in the VA treatment files to support the contention. At the time, I was happy enough that 100% P&T for a single condition was awarded, and likely let some "minor" issues slide too long. I'm still not happy with the VA's use of "VA Math" after the 100% single issue was awarded, among other things.

Edited March 31, 2015 by Chuck75

[john999]

I think if you were entitled to TDIU and "S" before you became 100% scheduler then you should have an EED for "S". How much time are we talking about for the EED for "S"? You got to wonder if you have enough time left in life to pursue it. If it is a lot of money I would hire a lawyer and forget about it if you can get a legal eagle to take the case. They do like the easy money most of the time unless you have my lawyer. I got "S" via a CUE and I had TDIU. I did get retro of about 2 years for S. I just asked the obvious question as to why I did not get "S" since I was Total plus 80%. Oops......The VA forgot.

John

[broncovet]

I have not yet gotten SMC S, but feel I should have with TDIU and my 100 percent schedular. Then I will appeal the effective date.

The RO said TDIU was "moot". However, the BVA agreed with me, that its "not moot." Then the RO never implemented the BVA remand. Thats where IM at.

It involves retro to 2002...so by the time my appeal is completed the retro will be $50,000 plus. About 300 per month for some 160 months or so.

[lotzaspotz]

My husband has an appeal pending before the BVA for this exact same scenario. He is 100% schedular disabled, with one rating at 60%, one at 50% which was the only grounds upon which his Social Security disability award was based, and 70% above the 100% schedular rating as of November 2007. He is not housebound in fact. We filed for TDIU in an effort to get SMC s, but the claim was denied as moot due to the 100% schedular rating. We have attorney representation on this appeal. This should get very interesting when it hits the Board.

On the other question, I vote for the writ petition. We've had success with that, the VA will act on the claim to assure that the CAVC will dismiss the petition as moot once you get the action you're seeking.