Jump to content
VA Disability Claims Community Forums - HadIt.com Veterans
  • veterans-crisis-line.jpg
    The Veterans Crisis Line can help even if you’re not enrolled in VA benefits or health care.

    CHAT NOW

  • question-001.jpeg

    Have Questions? Get Answers.

    Tips on posting on the forums.

    1. Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery instead of ‘I have a question.
       
    2. Knowledgeable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title.
      I don’t read all posts every login and will gravitate towards those I have more info on.
       
    3. Use paragraphs instead of one massive, rambling introduction or story.
       
      Again – You want to make it easy for others to help. If your question is buried in a monster paragraph, there are fewer who will investigate to dig it out.
     
    Leading too:

    exclamation-point.pngPost straightforward questions and then post background information.
     
     
    Examples:
     
    • Question A. I was previously denied for apnea – Should I refile a claim?
      • Adding Background information in your post will help members understand what information you are looking for so they can assist you in finding it.
    Rephrase the question: I was diagnosed with apnea in service and received a CPAP machine, but the claim was denied in 2008. Should I refile?
     
    • Question B. I may have PTSD- how can I be sure?
      • See how the details below give us a better understanding of what you’re claiming.
    Rephrase the question: I was involved in a traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?
     
    This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial of your claim?”
     
    Note:
     
    • Your first posts on the board may be delayed before they appear as they are reviewed. This process does not take long.
    • Your first posts on the board may be delayed before they appear as they are reviewed. The review requirement will usually be removed by the 6th post. However, we reserve the right to keep anyone on moderator preview.
    • This process allows us to remove spam and other junk posts before hitting the board. We want to keep the focus on VA Claims, and this helps us do that.
  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • VA Watchdog

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

  • 0

Smc For Housebound


Philip Rogers

Question

  • HadIt.com Elder

I suggest anyone with TDIU apply for Housebound. Also those with 60% or more might consider the same. See CAVC, Hartness V. Nicholson. JMO

"Recently the Court has clarified that housebound benefits are payable where the pertinent disabilities cause the veteran to be substantially confined to the home or its immediate premises, and that this requirement is met when the veteran is unable to leave the home to earn a living." Hartness v. Nicholson, 20 Vet. App. 216 (2006)

pr

Edited by Philip Rogers (see edit history)
Link to comment
Share on other sites

  • Answers 13
  • Created
  • Last Reply

Top Posters For This Question

13 answers to this question

Recommended Posts

  • HadIt.com Elder

Rick - what is in quotes is from the BVA, in a remand order to a veteran, and not my assessment. I'm sure the VA will fight it but for now it stands.

pr

Phillip,

I am not sure I agree with your assement, I think you are reading into what the court said.

No matter ... lets gets some more opinions I have posted the case below....

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 04-0888

Robert A. Hartness, Appellant,

v.

R. James Nicholson,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans' Appeals

(Decided July 21, 2006 )

Samuel M. Tumey, of Liberty, Mississippi, was on the brief for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Joan E. Moriarty, Deputy Assistant General Counsel; and Mark M. McNabb, all of Washington, D.C., were on the brief for the appellee.

Before LANCE, DAVIS, and SCHOELEN, Judges.

DAVIS, Judge: The appellant, Robert A. Hartness, appeals from the May 5, 2004, decision of the Board of Veterans' Appeals (Board or BVA) that, inter alia, denied his claim for a special monthly pension based on his status as permanently housebound. Both parties filed opening briefs and Mr. Hartness filed a reply brief. We will not consider Mr. Hartness' claim for special monthly pension based on the need for regular aid and attendance, because on appeal, he explicitly abandons this argument. See Ford v. Gober, 10 Vet.App. 531, 535 (1997). His sole argument on appeal is that the Board erred when it denied entitlement to a special monthly pension based on his permanent housebound status. See 38 U.S.C. 1513, 1521(e); 38 C.F.R. 3.351(d) (2005). The Court concludes that the Board failed to apply section 1513 when considering whether Mr. Hartness was entitled to a special monthly pension under section 1521(e). For the reasons provided below, the Court will (1) reverse the May 2004 decision to the extent that it denied entitlement to special monthly pension under 38 U.S.C. 1521(e); (2) remand the matter for the Board to (a) apply 38 U.S.C. 1513 to Mr. Hartness' claim for a special monthly pension based on section 1521(e) and (:D remand for the Board to determine the amount of his income and his eligibility for non-service-connected disability pension.

I. BACKGROUND

Mr. Hartness, a World War II veteran, served honorably in the U.S. Army from October 1940 to August 1945. Record (R.) at 14. The Court takes judicial notice of the fact that Mr. Hartness, who was born on December 18, 1920, is over 65 years old. R. at 14; see Smith (Brady) v. Derwinski, 1 Vet.App. 236, 238 (1991) ("Courts may take judicial notice of facts not subject to reasonable dispute." (citing Fed. R. Evid. 201(B))). In a September 19, 2002, private medical report, Dr. James Fly indicated that Mr. Hartness was permanently and legally blind because of age-related macular degeneration of the retina. R. at 105. According to an April 2003 VA examination, Mr. Hartness was able to dress, feed, and bathe himself, ambulate for 100 yards, and mow his own lawn. R. at 139-40. The report also noted that he was unable to drive, but would leave the house once or twice weekly with assistance of others to attend church or go to the grocery store. Id. Subsequently, in an April 2003 decision, the Jackson, Mississippi, VA regional office (RO) granted Mr. Hartness a monthly pension based on his non-service-connected macular degeneration rated at 70% disabling and denied entitlement to a special monthly pension . R. at 132. The RO also noted that his pension would be terminated in February 2004 because his annual income exceeded the maximum amount allowed under 38 C.F.R. 3.3(a)(3)(v) (2003). R. at 133.

In its 2004 decision on appeal, the Board denied entitlement to a special monthly pension for both aid and attendance and a pension at the housebound rate. R. at 10. In reaching its decision, the Board recognized Mr. Hartness' condition, rated at 70% disabling, and considered the results of the 2003 VA examination. R. at 9. The Board focused on the regulatory language in 38 C.F.R 3.351(d), emphasizing that "n the absence of at least one disability rated at 100 percent disabling, the provisions for special monthly pension at the housebound rate are not for consideration." Id. Therefore, the Board concluded that Mr. Hartness " cannot be deemed housebound as contemplated by VA law and regulation." R. at 9.

II. CONTENTIONS ON APPEAL

On appeal, Mr. Hartness abandoned his claim for entitlement to a special monthly pension based on the need for regular aid and attendance. Appellant's Brief (Br.) at 1. Instead, he argues that based on the definition of "permanently housebound" as defined in 38 U.S.C. 1502©, he is entitled to a special monthly pension under 38 U.S.C. 1513, 1521( e). He asserts that a plain language reading of section 1513(a), entitled " Veterans 65 years of age or older," excuses a veteran seeking a pension under 1521(e) from demonstrating a disability rated as permanent and total . Appellant's Br. at 5; Appellant's Reply Br. at 3-5. As a result, he argues that absent the requirement of total and permanent disability, he is entitled to special monthly compensation because he is permanently housebound. Appellant's Reply Br. at 4-5. In the alternative, he argues that the Board decision should be set aside and remanded to determine the circumstances under which Mr. Hartness could be considered permanently housebound. Appellant's Br. at 12; Appellant's Reply Br. at 6.

In response, the Secretary argues for affirmance of the Board decision. Secretary's Br. at 6. He notes that, because the veteran is capable of leaving his home without assistance, the veteran's condition does not conform with the statutory definition of "permanently housebound" under section 1502©. Secretary's Br. at 5. Failing to address section 1513 in his brief, the Secretary submits that, as a matter of law, Mr. Hartness is not entitled to a special monthly pension because he does not have a disability that is rated as permanent and total, and alleges that, as a result, Mr. Hartness does not meet the threshold requirements of 38 C. F.R. 3.351(d). Id.

III. ANALYSIS

A. Jurisdiction

At the outset, we note that Mr. Hartness argues, for the first time here, that the plain language of 38 U.S.C. 1513 entitles him to a special monthly pension because he is permanently housebound. Although on appeal this Court "may hear legal arguments raised for the first time with regard to a claim that is properly before the [C]ourt, it is not compelled to do so in every instance." Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000) (citing McCarthy v. Madigan, 503 U.S. 140, 146 (1992)). When this Court entertains an argument raised on appeal for the first time, it considers whether the appellant has exhausted administrative remedies. The doctrine of exhaustion of

administrative remedies is a case-specific determination dependent on whether the interests of the individual weigh heavily against the interests to protect administrative authority and promote judicial efficiency. McCormick v. Gober, 14 Vet.App. 39, 44 (2000). Here, consideration of Mr. Hartness' argument is of interest to the Court because we have not previously had opportunity to address section 1513 or its interplay with section 1521. Accordingly, we will consider appellant's argument. See 38 U.S.C. 7261(1).

B. Law

Chapter 15 of title 38, U.S. Code, governs the administration of pension for non-service-connected disabilities. In the instant appeal, we focus on the interplay between 38 U.S.C. 1513 and 1521 when considering whether Mr. Hartness is entitled to a special monthly pension because he is permanently housebound. Section 1513, "Veterans 65 years of age and older," provides:

(a) The Secretary shall pay to each veteran for a period of war who is 65 years of age or older and who meets the service

requirements of section 1521 of this title (as prescribed in subsection (j) of that section) pension at the rates prescribed by 1521 of this title and under the conditions (other than the permanent and total disability requirement) applicable to

pension paid under that section.

38 U.S.C. 1513(a); see 38 C.F.R. 3.3(a)(3)(vi). Section 1521 provides, in pertinent part:

(a) The Secretary shall pay to each veteran of a period of war who meets the service requirements of this section (as

prescribed in subsection (j) of this section) and who is

permanently and totally disabled from non-service-connected

disability not the result of the veteran's willful misconduct, pension at the rate prescribed by this section, as increased from time to time under section 5312 of this title.

. . . .

(e) If the veteran has a disability rated as permanent and total and (1) has additional disability or disabilities

independently ratable at 60 per centum or more, or (2) by

reason of a disability or disabilities, is permanently

housebound but does not qualify for a pension at the aid and attendance rate provided by [38 U.S.C. 1521(d)], the annual rate of pension payable to the veteran under [38 U.S.C. 1521( B)] shall be $4,340 and the annual rate of pension payable to the veteran under [38 U.S.C. 1521©] shall be $5,441.

38 U.S.C. 1521(a), (e).

C. Board Application of 38 U.S.C. 1513, 1521

Without considering section 1513, the Board applied section 1521(e) and 38 C.F.R. 3.351(d)(2), concluding that, without a disability rated as total or permanent, "the provisions for special monthly pension at the housebound rate are not for consideration." R. at 9. Mr. Hartness argues that the Board erred because it failed to apply section 1513 when considering whether he is entitled to a special monthly pension under section 1521(e). We agree. The Board's analysis and finding that Mr. Hartness was not entitled to a special monthly pension based on permanent housebound status, without consideration of section 1513, is clearly erroneous. See 38 U.S.C. 7104(a), (d)(1); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990) (recognizing "[a] finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed"). On remand, the Board will apply the following interpretation of section 1513 and consider Mr. Hartness' eligibility for a special monthly pension consistent with the provisions of section 1521(e).

D. Statutory Construction of 38 U.S.C. 1513

The Court interprets a statute de novo. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (en banc). As in all matters involving statutory interpretation, we begin our analysis with an examination of the statutory language. See Howe v. Smith, 452 U.S. 473, 480 (1981); Reiter v. Sonotone Corp., 422 U.S. 330, 337 (1979). "We assume 'that the legislative purpose is expressed by the ordinary meaning of the words used,'" Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (quoting Richards v. United States, 369 U.S. 1, 9 (1962)), and "follow the cardinal rule that a statute is to be read as a whole . . . since the meaning of statutory language, plain or not, depends on the context." King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991) (citing Shell Oil Co. v. Iowa Dep't of Revenue, 488 U.S. 19, 25 ( 1988)). "Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Prod. Safety Comm'n v. GTE Sylvania, 447 U.S. 102, 108 (1980). "Where a statute's language is plain, and its meaning clear, no room exists for statutory construction. There is nothing to construe." Gardner v. Derwinski, 1 Vet.App. 584, 587-88 (1991) (citing Lewis v. United States, 92 U.S. 618 (1876)), aff'd sub nom., Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994); see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) ("If the intent of

Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."). In addition, generally, where a veterans benefits statute is ambiguous, "interpretive doubt is to be resolved in the veteran's favor." Gardner, 513 U.S. at 118; see Allen (Alfred) v. Brown, 7 Vet.App. 439, 448 ( 1995) (en banc).

The plain language of 38 U.S.C. 1513(a) requires that the Secretary pay a veteran who is 65 years of age or older and who meets the service requirements of section 1521 "pension at the rates prescribed by 1521 of this title and under the conditions (other than the permanent and total disability requirement) applicable to pension paid under that section." 38 U.S.C. 1513(a) (emphasis added). As a result, if the veteran is 65 or older and conforms to the service requirements of section 1521, the requirement under section 1521 that a veteran be permanently and totally disabled or have a disability rated as permanent and total is excluded.[ 1Section 1521(e) was originally enacted in 1964 as part of a pension bill that introduced special pension provisions for non-service- connected pensions. Veterans' Pension Amendments of 1964, Pub. L. 88-664, 78 Stat. 1095. In 1967, for purposes of non-service-connected pension, Congress enacted a presumption of total and permanent disability for veterans aged 65 years of age or older. Veterans' Pension and Readjustment Assistance Act of 1967, Pub. L. 90-77, 81 Stat. 178. Congress repealed this presumption in 1990. Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508, 104 Stat. 1388. When Congress enacted section 1513 in 2001, it awarded non-service-connected pension without regard to disability for veterans who are 65 years of age and older and who meet the service requirements of section 1521(j). Veterans Education and Benefits Expansion Act of 2001, Pub. L. 107-103, 115 Stat. 991. ]1

This interpretation is consistent with the legislative history of sections 1513 and 1521, requiring that a veteran demonstrate permanent and total disability or a disability rated as permanent and total for entitlement to non-service-connected pension benefits, except for veterans who are 65 or older so that "a pension will be provided to wartime veterans aged 65 and older without regard to disability." S. Res. 1088, 107th Cong., Cong. Rec. 13,239 (2001) (enacted). Consistent with legislative intent, section 1513(:) provides that "f a veteran is eligible for a pension under both this section and section 1521 of this title, pension shall be paid to the veteran only under section 1521 of this title." 38 U.S.C. 1513(B). Therefore, considering section 1513 as a whole and based on a plain language reading, we conclude that a veteran who is 65 years of age or older, and who otherwise conforms to the service requirements of section 1521, is entitled to a pension at the rates and under the conditions, other than permanent and total disability, required by section 1521.

E. Interplay between 38 U.S.C. 1513(a) and 1521

We first note that the Secretary's regulation entitled "Pension," implementing sections 1513 and 1521, fails to provide guidance on the interaction between the two statutory provisions. See 38 C.F.R. 3.3(a)( 3). In addition, the Secretary's interpretation of the special pension provisions under section 1521(e), contained in 3.351(d), has not been amended since its promulgation in 1979 and thus does not consider the interpretive effects of section 1513(a), first enacted in 2001, as applied to section 1521(e). See 38 C.F.R. 3.351(d); 44 Fed. Reg. 45,939 (1979). Therefore, we now consider the interplay between section 1513(a), as interpreted above, and section 1521, mindful that any ambiguity in interpretation must be resolved in the veteran's favor. See Gardner, 513 U.S. at 118. By express language in section 1513, the determination of whether a veteran is entitled to pension under the terms of section 1521 is conducted absent the condition that the veteran demonstrate permanent and total disability or that the veteran have a disability rated as permanent and total. The statute expressly excludes that requirement by language contained in the parentheses-"(other than the permanent and total disability requirement)." 38 U.S.C. 1513(a). The total-and-permanent- disability requirement appears only in subsections (a) and (e) of section 1521. See 38 U.S.C. 1521.[ 2We also note that in section 1521 Congress distinguishes between a veteran "who is permanently and totally disabled," 38 U.S.C. 1521(a), and a veteran who has "a disability rated as permanent and total," 38 U.S.C. 1521(e). However, because Congress did not make that distinction in the section 1513 statutory language excluding the permanent-and-total-disability requirement, here we apply section 1513 to section 1521(a) and (e). ]2 We hold that application of section 1513(a) results in the exclusion of the permanent-and-total- disability requirement in section 1521(a) and (e) when considering whether a veteran 65 years of age or older is entitled to non-service-connected disability pension.

As noted above, section 1521(a) focuses on the Secretary's obligation to pay a veteran a non-service-connected disability pension where the veteran meets threshold service requirements and is permanently and totally disabled. Similarly, the plain language of section 1521(e) provides for an increased pension rate for a veteran who has a disability rated as permanent and total

f the veteran has a disability rated as permanent and total and (1) has additional disability or disabilities independently ratable at 60 per centum or more, or (2) by reason of a

disability or disabilities, is permanently housebound but does not qualify for pension at the aid and attendance rate. . . . 38 U.S.C. 1521(e) (emphasis added).[ 3 According to

section 1502, title 38, U.S. Code, a veteran is considered " permanently housebound," when "the veteran is substantially confined to such veteran's house . . . or immediate premises due to a disability or disabilities which it is reasonably

certain will remain throughout such veteran's lifetime." 38 U. S.C. 1502© (emphasis added). ]3 Accordingly, when

applying section 1513 to section 1521, under section 1521(e), as in section 1521(a), the condition that the veteran have a disability rated as permanent and total, is excluded. The

impact of this interpretation is that a wartime veteran is

awarded a special monthly pension if, in addition to being at least 65 years old, he or she possesses a minimum disability rating of 60% or is considered permanently housebound as

defined under 38 U.S.C. 1502©. Thus, we hold that applying the plain language of section 1513(a) to section 1521,

consistent with Congress' intent to provide a pension to

veterans aged 65 years of age or older regardless of disability, results in the exclusion of the permanent and total disability requirement in sections 1521(a) and 1521(e). On remand, the Board will apply our holding and consider Mr. Hartness'

eligibility for a special monthly pension, pursuant to the

provisions of section 1521(e).

F. Permanently Housebound

Mr. Hartness argues that based on the language of section 1513 he is entitled to the special pension provision of section 1521(e) because he is considered permanently housebound under 38 U.S.C. 1502. Based on the statutory definition of "permanently housebound," it must be determined that Mr. Hartness is "substantially confined to his or her dwelling and the immediate premises" to be considered permanently housebound according to statute and regulation. 38 U.S.C. 1502©; see 38 C.F.R. 3.351(d)( 2). Absent a regulation by the Secretary defining the term "substantially confined," we conclude that the term may conceivably be more broadly construed to incorporate the facts considered here. It is significant 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." Cf. Howell v. Nicholson, 19 Vet.App. 535, 540 (2006). However, whether Mr. Hartness is substantially confined within the meaning of the statute is a determination to be made by the Board in the first instance. We leave this matter for the Board's consideration on remand.

As to Mr. Hartness' condition, the Board concluded that he was not " substantially confined," noting a "capacity to walk approximately 100 yards. . . . He left the house 1-2 times per week to go

to the grocery store or church with the help of a friend." R. at 8. The Board further determined "the veteran is capable of leaving the home, and admits to being able to mow his lawn. Thus, he cannot be deemed 'housebound' as contemplated by VA law and regulation." R. at 9. On remand, the Board will reconsider the record on appeal in light of our holding and determine whether Mr. Hartness is entitled to a special monthly pension under section 1521(e) either (1) because of his existing non- service-connected disability rated at 70% disabling; or (2) because Mr. Hartness is substantially confined according to VA law and regulation so that he is considered permanently housebound according to sections 1502( c) and 1521(e).

G. Eligibility for Non-Service-Connected Disability Pension

We also note that the record on appeal is ambiguous as to Mr. Hartness' eligibility for non- service-connected pension and special monthly pension under section 1521. According to an April 2003 award letter, the RO determined that Mr. Hartness' pension would be "terminated effective February 1, 2004, because [his] income exceeds the maximum amount allowed by law." R. at 133. VA specified that his "income effective February 1, 2004, is $14,072[]. The limit for a single veteran is $9,690[]." Id. In response, Mr. Hartness filed his April 2003 Notice of Disagreement, indicating that VA had miscalculated his Social Security income and that his actual income was $608 per month. R. at 137. The May 2003 Statement of the Case does not address this issue. On remand, VA will determine the amount of Mr. Hartness' income and his eligibility for non-service-connected disability pension. See 38 C.F.R. 3.262(f) (2005) ( evaluating income derived from Social Security benefits).

IV. CONCLUSION

Upon consideration of the foregoing, the Court will (1) reverse the Board's decision to the extent it denied entitlement to a special monthly pension under section 1521(e); (2) remand for the Board to apply 38 U.S.C . 1513, as interpreted herein, to Mr. Hartness' claim for a special monthly pension based on section 1521(e); and (3) remand for the Board to determine the amount of his income and his eligibility for a non-service- connected disability pension.

REVERSED IN PART and REMANDED.

TBIRD I DID NOT ADD THE FUNNY FACES TO THIS POST, I THINK SOME HOW THE SYSTEM ADDED THEM AUTOMATICALLY

Link to comment
Share on other sites

  • HadIt.com Elder

I think from every thing I have read you must be 100% schedular for at least one disability to get housebound. A friend I have was IU and he applied for housebound. The VA bumped him up to 100% schedular and granted the HB. He did not ask to be rated 100% but the VA determined he was HB so they then bumped him up to 100%. That is how he got it.

Link to comment
Share on other sites

  • HadIt.com Elder
I think from every thing I have read you must be 100% schedular for at least one disability to get housebound. A friend I have was IU and he applied for housebound. The VA bumped him up to 100% schedular and granted the HB. He did not ask to be rated 100% but the VA determined he was HB so they then bumped him up to 100%. That is how he got it.

John - What you are stating is old law - this is a new decision by the court, in October, 2006. Sure looks good for vets with a 60% rating or higher. Time will tell. The VA has never given a legal definition of "substantially" housebound and I believe they will as a result of this decision. Either way, I think vets should apply now. jmo

pr

Link to comment
Share on other sites

  • HadIt.com Elder

No problem Rick. Please note that this quote is from a less than 65 year old 100% sc vet's appeal remand order. It further states in the "remanded for the following action" section "The examiner should also opine as to whether the veteran is substantially confined to his dwelling or the immediate premises as a direct result of his service connected disabilities, that is, do these disabilities cause him to be unable to leave the house in order to earn a living."

To me this opens the door for many PTSD vets to receive housebound status. I'm sure the OCG will write an opinion but in the mean time I'd recommend they apply. jmo

pr

Philip,

Sorry, This isn't my day...I wasn't tryin to be a wise guy, I made my last statement tongue in cheek (thats why the blinking smily)

Ok I have read, read and re-read the courts opinion. I have highlighted what I think is the deciding facts. If there any other ideas, or opinions... I would appreciate hearing them.

I think it means, but it is really hard to understand:

Veterans 65 or older requesting a nsc pension may quailfy for housebound compensation, because congress did not define what "substantilly confined" means. The court thinks congress meant that if a veteran could not leave home to go to work then he is housebound, regardless of the fact that the veteran may be able to leave his dwelling for other than work.

If this holds true, I don't think this rulling will apply to veteran under 65 with service connected injuries. becaue it is taken from a section that is addressing nsc pension and it is only the language in that section that omitted the requirement of a 100% plus 60% rating. Since it is addressing NCS pensions, the fact that the requirement of a 100% rating together with a 60% rating may not matter since service connection is not a issue.

Thus, we hold that applying the plain language of section 1513(a) to section 1521,consistent with Congress' intent to provide a pension to veterans aged 65 years of age or older regardless of disability, results in the exclusion of the permanent and total disability requirement in sections 1521(a) and 1521(e).On remand, the Board will apply our holding and consider Mr. Hartness' eligibility for a special monthly pension, pursuant to the provisions of section 1521(e).

F. Permanently Housebound

Mr. Hartness argues that based on the language of section 1513 he is entitled to the special pension provision of section 1521(e) because he is considered permanently housebound under 38 U.S.C. 1502. Based on the statutory definition of "permanently housebound," it must be determined that Mr. Hartness is "substantially confined to his or her dwelling and the immediate premises" to be considered permanently housebound according to statute and regulation. 38 U.S.C. 1502©; see 38 C.F.R. 3.351(d)

( 2). Absent a regulation by the Secretary defining the term "substantially confined," we conclude that the term may conceivably be more broadly construed to incorporate the facts considered here.

It is significant 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." Cf. Howell v. Nicholson, 19 Vet.App. 535, 540 (2006).

However, whether Mr. Hartness is substantially confined within the meaning of the statute is a determination to be made by the Board in the first instance. We leave this matter for the Board's consideration on remand.

Link to comment
Share on other sites

  • HadIt.com Elder

Sorry Rick, these quotes are not from Hartness but from another vet's remand which makes the reference to Hartness case and this is the BVA's understanding. Didn't mean to confuse you.

pr

Philip,

You said, " Please note that this quote is from a less than 65 year old 100% sc vet's appeal remand order"

But notice the second line under background.....

I. BACKGROUND

Mr. Hartness, a World War II veteran, served honorably in the U.S. Army from October 1940 to August 1945. Record (R.) at 14. The Court takes judicial notice of the fact that Mr. Hartness, who was born on December 18, 1920, is over 65 years old.

Link to comment
Share on other sites

  • HadIt.com Elder

Yes, my initial post was referring to another case that referenced Hartness v. Nicholson. The case I'm referring to is a friends and isn't on-line yet. Remand was just made by BVA earlier this month. My point is that the BVA pointed it out, which is why I think vets should apply.

pr

Philip,

AH....OK......You have lost me... are you saying that your initial post was refering to another case that referenced Hartness v. Nicholson ?

If this is what you are saying ... then what is the case that you are refering too.

Link to comment
Share on other sites

  • HadIt.com Elder

Just so you know, Rick, it is not my reading but is the BVA's reading. I'm surely hoping it will be.

pr

Philip,

Thanks...

I am hoping your read is right, because if it is I would be awarded housebound, since I am TDIU with two seperate 60% ratings.

But If the read is the same that was posted here already then I am not sure... \

Would like to get Vike17's , and Betha's read on this two.....

Link to comment
Share on other sites

"Does anyone know where the above quote is found outside this particular conversation? If not it should simply be considered heresay, short of a real live BVA extract to that effect that is."

This is established VA case law- certainly not 'hearsay'.

See: 38 CFR 3.351, 38 CFR 3.951-953,

38 USC 1114,

and M21-1 Part VI, Change 106, Chapter 8 (8.02 a,b,c,)

Link to comment
Share on other sites

  • HadIt.com Elder

Here's a link to the case I was referring to previously: http://www.va.gov/vetapp06/files5/0634442.txt

pr

Hasnt been much traffic on this topic, but I have to take issue with the following statement:

"Recently the Court has clarified that housebound benefits are payable where the pertinent disabilities cause the veteran to be substantially confined to the home or its immediate premises, and that this requirement is met when the veteran is unable to leave the home to earn a living." Hartness v. Nicholson, 20 Vet. App. 216 (2006)

Does anyone know where the above quote is found outside this particular conversation? If not it should simply be considered heresay, short of a real live BVA extract to that effect that is.

Regardless, I am going to apply for "housebound" as I am 100% scheduler for PTSD with two other SC physical disabilities.

The worst that can happen is they say no!

Link to comment
Share on other sites

  • HadIt.com Elder

Actually the worst that can happen is the VA can review your claim and reduce your rating. Every time you ask for something it opens you up to a complete review. That said it is a lot easier to get I applied and got it in under four months last December.

Link to comment
Share on other sites

  • HadIt.com Elder

Peter, I missed that. Good on you! Congrats!!!

pr

Actually the worst that can happen is the VA can review your claim and reduce your rating. Every time you ask for something it opens you up to a complete review. That said it is a lot easier to get I applied and got it in under four months last December.
Link to comment
Share on other sites

It's not a lot of money at all and not really worth the hassle of reopening a claim; especially a PTSD one rated at 100%, but if you really need the extra $ and feel your PTSD case is air tight, then go for it.

However, if you are not yet P&T and you have an upcoming C&P then use housebound as a bargaining chip to keep your current rating. Sometimes the VA likes to feel as if they've won something and if you ask for HB during a C&P, they may be more inclined to keep you at 100% because the HB denotes a decrease in your functioning (even if they don't grant it). But I wouldn't reopen the case needlessly if you have a C&P in the future.....

Link to comment
Share on other sites

  • HadIt.com Elder

I went to the VA today and a 70% Veteran was trying to get a document for the State to issue Disabled Plates. I had been talking to them earlier so I asked if he was Disabled he did not ask for TDIU? He said he did not know about it. Amazing how the VA knows and keeps Veterans in the Dark.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
×
×
  • Create New...

Important Information

{terms] and Guidelines