BVA Decision arrived! Expert opinions requested!

[broncovet]

My BVA decision arrived yesterday, with mixed results.    On one hand, as my attorney said, TDIU was awarded.

Summary:  

The, the decision specifically "forked" (DIVIDED) MY tdiu into 2 parts:

1.  2002 to 2004  (denied)

2.  2004 to 2006 (approved).  

While Im greatful for the award, it was about 1/3 of what I think it should have been.   Redacted version:

 

"For the time period (2002 to 2004, date redacted), the evidence does not establish the Veterans bilateral hearing loss-his only service connected disability during that time period-rendered him unable to secure or maintain SGE".  

end of redacted decision quote.  

      My analysis.  The decison went on to award TDIU from 2004 to 2006, based on hearing loss AND depression with a combined evaluation of 40 percent.  It was "extraschedular" TDIU under 38 cfr 4.16 b.  I find the boards reasons and bases to be in error, because my 2005 VARO decision established that depression was secondary to hearing loss, AND the Board "probably" did not have that decision available, as I have had much shredded evidence.  Thus the boards reasoning that my "only sc disability" at the time was hearing loss does not apply because its not my fault the VA made an error on the effective date for depression, as the evidence established I was depressed, and, later this depression was sc.  

     My opinion is the board decision is a "post hoc rationalization" to justify a weak effective date.  I had applied for TDIU in 2002 (the date of application) and the general rule for effective dates is the later of the "date of application" or facts found.  There was no doctor evidence that said I was employable from 2002 to 2004, but rather my SC disabiloities (one of which was NOT YET SC) rendered me unemployable.  I think its error for the VA to conclude that because the depression was "not yet" service connected, that meant my depression was NSC.  This means the etiology of depression had to change:  From 2002-2004 my depression was "unrelated to service" while after 2004, "poof" the depression was related to service.  This did not happen, my etiology did not change, there is no evidence of that.  

      Equally important, the board failed to adjuticate SMC S, when I had specifically asked for consideration of SMC S under the HOWELL CRITERIA.  See here:

https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/    In pertinent part, since Im tdiu, Im unable to leave the home "for work" using the Howell criteria.  

      

[Buck52]

Accept the IU AND appeal the EED.

or if your ok with the IU?..I's just leave it alone. 

Also you have that'' NSC'' hanging over your head.

I don't think IU is enough to get SMC-S???

Especially if they used the Extra scheduler rating system 416 (b) other wise they would not need to use that.

Also in 2002-2004  if you was not S.C. then you need to recheck that EED.& you mention no Dr mention you was ''unemployable'' back then!

I applied back in 1997 and finally awarded 50% IN 2000..OK in 2001 I applied for increase and from a proposal to reduce that rating by a VA C&P Examiner (at the time) USING A DRO hearing at R.O. ....>DRO awarded the Increase and instead of a reduction. And b/c I could not work from this S.C. Disability  he Awarded the TDIU P&T but did not go back to the 2000 filing for increase  he went back to when I first filed for the INCREASE which was 2001

I had TDIU P&T for years (14) and I never was awarded the SMC S ( &Could not leave home for work)  it was years later that I reach the SMC S Criteria  with a S.C. 70% PTSD Rating  because it was a separate S.C. Rating I meet the SMC S Criteria. and they inferred it as its a mandatory rating.

Also bronco for a quick answer to the SMC  if they used the extra scheduler for you to reach the IU 4.16 (b) And IF you don't have another separate  S.C. Rating at 60% or higher  then you don't meet the SMC Criteria on the special SMC Rating Table

even if you had a combined rating before the IU was Awarded  you would still have to meet the SMC Criteria

As I understand it.

Edited August 16, 2017 by Buck52

[broncovet]

Thank you for your answer, BUCK!.  I agree that I should "accept IU" and appeal effective date.  

I also agree that I did not meet the requirments for STATUATORY SMC (100 plus 60) AT THAT TIME.  However, the board specifically referred to my doctors statement that I am "homebound".  

      I think its important to understand what "housebound" (SMC S) means, and it does not mean you can not leave the home for any reason!   It means you can not leave the home "for work".  That is a huge difference.  I call it the "Howell" criteria for SMC S, based in part on Alex's post, which explains congress intended for SMC S to be paid to Vets that cant leave the home "for work", that congress did not mean SMC S was for Vets who could not leave the home AT ALL.  

      Im not suggesting I "never" leave my home, but I dont leave it "for work" as IM not working!  Thus, I meet the howell criteria for SMC S.  

      The HOWELL criteria for SMC S means that every IU Vet should get SMC S.!!!

 

Edited August 16, 2017 by broncovet

[Buck52]

Yes I understand about the  '' can not leave home for work''  and the SMC S should have been awarded to you for this reason.

 (Using the Howell Criteria )

( However you were not 100%) being IU Don't mean your rating % is 100%  it means they are paying you at the 100% rate but your combined total rating is 90%

 Now Unless they change this after I got my TDIU P&T  15 YEARS AGO..I could not leave home for work but I could leave home to buy groceries ect,,ect,,but I was not 100% rated

They never infrred  me the SMC S to me back then?

  Unless this rule has change recently in the last 7/8 years? (Howell Criteria) I never or the VA Never change that for me to the  SMC -S HOME BOUND b/c I did not leave home for work...Guess they beat out of about 15 years of SMC S?

Because Back when I got the TDIU P& T  I was 90% combined rating and they used the extra scheduler rating to boost me up to the IU.back in 2002

Ok, now I am being paid at the 100% rate but still have a over all rating at 90%...so actually there saying I did NOT meet the SMC -S Criretia for this reason...(being 90% combined rating & not 100%) Even though I did not leave home for work!

I never fought them on this b/c I always had thought a Veteran has to be 100% to qualify for the SMC-S? with a Separate 60% or higher S.C. Rating.

  So unless these rules have change since then  maybe they apply today?

 I got the SMC -S because of another  Separate S.C. Rating of 70% for chronic PTSD &  that boosted me up from the 90% combined rating to the 100%  plus the extra 60% for SMC S.& the TDIU is moot.

My over all rating now is 190%

with the 2 SMC's  I might get Sleep Apnea S.C. TO MY secondary to my PTSD..been thinking about it  but no more $$in it for me  other than wife DIC if Sleep Apnea Gets me.

As I understand all this? Maybe not?

 

Edited August 16, 2017 by Buck52

[broncovet]

Carefully read Alex's post again.   Remember, the VA denied Howell NOT on his failure to meet statuatory requirments (100 plus 60), but because the Veteran showed up for a c and p exam, so the VA concluded that, "Ok, you left the home for a doc appointment, so you CAN leave the home.  Claim denied".   Howell explained this is error.  The VA can not deny you beause you left your home for a doctors appt.  Congress did not intend this to mean the vet can leave his home, they intended it to mean the vet can leave the home FOR WORK.  

Howell means there is new criteria for SMC...the "howell criteria".  The howell criteria means you can not leave your home for work.  There is a huge difference between not leaving your home "at all" and not leaving your home "for work".  There are many purposes to leave your home..

[broncovet]

Howell says we are not a prisoner in our own home in order to get housebound.  "Substantially" confined to our home means we dont leave it to go to work!!!

[Buck52]

 When did Howell Rule come out?

I understand that..but what about the SMC Criteria of having to be 100% and if the Howell Rule Criteria is for this reason you can't leave home for work...is it grand-fathered in for EED?  for SMC-S?

What about Veterans like me that was TDIU P&T and did not leave home for work back in 2002...No SMC S was statutory or ever  inferred to me back then?

I guess I got the SMC S The hard way or the old fashion way...by getting a Separate 70%S.C. Rating of 100%plus 60%meeting the SMC S Criteria.

or maybe under the  Bradely vs Peake Rule?

Edited August 16, 2017 by Buck52