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??

[deltaj]

I am trying to understand whether an application for unemployability is a claim for housebound. Please clarify this.

[Chuck75]

This is a bit interesting!

A 100% Disability rating does not of itself mean that a veteran cannot work. TDIU Does, as does a high PTSD rating.

SMC is considered to be appropriate when a veteran cannot leave the house for work. (How this might be interpreted is up for grabs!)

SMC can also be awarded at a lesser %, as can TDIU, when the disability prevents the veteran from working.

Is TDIU a negative factor for SMC? The VA thinks so, and the courts do not, from what I can see.

Should a high PTSD rating be an automatic path to SMC consideration/award? I think it should!

If there is no mention of consideration for SMC, and no award, it's sort of obvious that it was not considered.

This is based on a combination of specific law, court, formal legal opinions, and a past secretaries statement to congress.

(My opinion as a veteran, not legal advice, and cannot be taken as such!)

It looks like the VA often has not considered and awarded SMC when it should have. Is this CUEable?

If so, I can see not a few veterans filing for SMC on a CUE basis.

Edited March 31, 2015 by Chuck75

[Berta]

Also SMC is a statutory mandate.

This link shows how I won a CUE (actually 4 CUEs in 2 claims,) because VA failed to consider SMC at all, yet the medical evidence warranted that they considerate it.

CUE comes into play , when they do not consider it.

If they should have, and then grant the CUE claim, they will rate and determine what type of SMC should be granted.

I sent them a print out of a brief part of the VBM by NVLSP regarding the statutory mandate of SMC.as part of my CUE evidence

I filed those claims in 2003 and then one in 2004 and they granted the CUEs in 2012...except one is still pending...their CUE decision award of 2012 forgot some cash. quite a bit of cash.

ALL claimants should make sure that they were properly considered for SMC in past decisionsthat awarded them TDIU or 100% SC.

I bet they make plenty of errors in not considering and awarding SMC, at "S" or even higher ratings because, if they ignore that issue, vets might not even realize, the issue should have been inferred and considered if the medical evidence and ratings warranted it.

[Buck52]

Ms Berta,

excuse me but I'm confused here

what exactly do you mean.

''All Claimants should make sure that they were properly considered for SMC in past decisions that awarded them TDIU OR 100% SC''...?

Can you give an example?

When a veteran is awarded TDIU P&T for one disability because that disability keeps him from working , is it that the disability becomes worse or another disability arouses from the original disability to a 60% rating? to be considered for SMC?

Is it VA responsibility to see to it at the time of a award decision is made the ''duty to assist'' the veteran for SMC? under the CFR'S?

Sorry I'm somewhat confused?

broncovet, What is TDIU moot mean ? RO says it is Moot & BVA agreed it was not moot? what does VA consider ''Moot?

I'm still learning , learn something new everyday because of all you guys.

I Appreciate all the education here on hadit I can get!

.................Buck

[Berta]

I will use my claims as an example.

In 1998 the VA properly awarded Sec 1151 DIC...after a skirmish I mentioned in replying to Carlie today.

In 1997 they had properly awarded PTSD 100% P & T in a posthumous accrued award to me.

On one of the rating sheets they had noted the 100% P & T for SC PTSD, and then had rated my husband's stroke ( NSC then but I proved was 1151 'as if 'SC at 90 %.

I subsequrntly proved that it was 100% P % T under 1151.

In their 1998 decision they made no mention of SMC.

100% for PTSD, plus 100% for 1151..

The vet rep I had at the time, who I trusted (then) told me 1151 issues were different but he also questioned why they didnt pay the SMC.he said no reason to file a NOD...like a dope I believed him but it always botherered me.

I found 4 CUEs in the decision.I filed CUE and they awarded in 2012.

100% PTSD plus over 60% 1151 equals SMC S

They did award 6 months accrued of the 1151 stroke, my current issue at VACO is over the rest of the cash they forgot to pay me.

They also awarded Housebound (100% SC plus the 60% 1151,

BUT this is how I filed the CUE......

I cited the SMC MAndate (available here under a search) and stated theirt "lack of proper consideration " ,in spite of the documented medical evidence, was the CUE.

SO when they caved in on that, they HAD to 'consider' if the veteran was eligible in his lifetime for SMC...and they awarded when they' considered" the established medical evidence.

CUEs have to define exactly what they did wrong.

Unfortunately for the VA, they had to pay me 100% accrued under 1151 plus the additional SMC S under 1151 because

100% SC plus 100% 1151 equals payment of BOTH awards with no offset.And also if it includes the SMC amounts.

Those regs are available here under a search.

Those regs are part of what VA doesn't want us claimants to even know about.

Does this help?

Edited April 1, 2015 by Berta

[Buck52]

Oic,

yes mam it helps a lot thank you!

I just think there are a lot of veterans out there that could get and deserve the SMC's & Unfortunately the VA beats them out of it!

I know a widowed veteran that is 100%SC P&T and housebound (AO. Three contentions Cancer and PTSD HPB...he was happy with the 100%...he pays a lady to come out and help him with things he can't do, cook /clean laundry ect,,ect,, I ask him if he was compensated by the VA he said yes I am 100 % disable, I said do you get SMC? he said whats that?.....eh!

Anyway I will sure let him know what you mention here and for him to check the award letter to see if the VA Fail to properly inform him of the SMC's and check the EED....I am not sure how long he has been 100% P&T??

I'll sure get he Ball rolling for him if he will let me?

Thank you Ms Berta