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??

[NavyWife]

Please email Bob. Give him a chance first. If that doesn't work, then you can go on to Plan B.

[broncovet]

Thank you for the advice, Chuck, lotsaspotz, Navywife, and john. Im having a little trouble composing the email to ask bob..one question is how much detail should I go into? Gee, if I told everything it would be 8 pages. I need to be precise, maybe a bit of emotion, and be sure and ask what it is I seek. I may even "bounce" the email composition off you "guys" to see if it can be improved on, too long, too short, etc. I think I need to limit it to one, or an absolute max of 2 pages. I just dont think it will get read if its 30, or even 5 pages. If I recall, CAVC does or wants to limit Vets stuff to about 30 pages. Im sure some Vets have written their life history (not that VA pretty much does not have all that.)

[NavyWife]

Not much detail at all. Your name, phone number and your claim number or Social Security number. Then a very brief summary of what you would like awarded. Perhaps just copy and paste from your 2nd post above. Usually someone will call you if it's complex, like yours. Then you can explain it to them. If its something simple, they might just complete it, then you would get a call or email, saying its completed.

[broncovet]

Thanks, Navy. I have a tendency to overcompicate things. Simpler is better.

[deltaj]

This is interesting. In 1992 my husband filed some claims for TDIU on V.A. forms that were entitled something like

application for unemployability, and at a year or so later was granted a 100% scheduler rating to a date prior to his

applications for TDIU. I'm not sure whether those applications for TDIU could be considered claims for housebound but I

seem to remember something being said in a decision about him not being housebound. I might be wrong about this though

because some of these decisions were about 20 years ago.

[broncovet]

Delta.

The VA must be driving a Dodge, because "the rules (For SMC) have changed".

Howell changed things, but you really need to understand why and how it will affect you. Read this over well, and follow the links:

https://asknod.wordpress.com/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

In a nutshell, the VA denied Mr. Howell Housebound based upon the fact he showed up for a C and P exam for housebound, reasoning he could not show up if he were housebound. This means housebound, in fact, could virtually NEVER be awarded with a C and P exam: You show up, you lose, you fail to show, you lose.

Mr. Carpenter, decided that project wont stand up. Here is what the court said, reminding you the Veteran must be "substantially confined" to his home to get housebound in fact: Thanks, asknod, for clarifying this:

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.

End Ask nod quote, who cited HOWELL.

This means you no longer have to prove you "cant leave the house" to be substantially confined, you need only demonstrate you cant leave the house to earn an income. BIG DIFFERENCE.