Can I include BVA cases with my request for reconsideration?

[burnedoutvet]

Can I include BVA cases with my request for reconsideration that are similar to my claim to justify entitlement to let's say...SMC...?

[jfrei]

https://www.va.gov/ogc/precedentopinions.asp

That being said they have cases that are considered Precedent Opinions... worth a gander if it applies to your case I know I used one in my DRO review...

A VA General Counsel precedent opinion is considered an administrative issue for effective date purposes as indicated in VAOPGCPREC 88-90, 38 U.S.C. 5110(g), and 38 CFR 3.114.

• Generally, rules announced in precedent judicial decisions apply to all cases that are still open on direct review when the new rule is announced.  Unless they state otherwise, statutes and regula

Edited April 3, 2018 by jfrei

[Berta]

Can you scan and attach the denial letter here? (Cover your C file# and name,address, prior to scanning it .

As Buck said-it you have an additional SC rated at least at 60-%,independent of the prime  SC disability- 

that should warrant SMC S, unl3ess you have medical evidence that would warrant the Housebound status (SMC S)

My SMC CUE is in the CUE forum.

The regulation they broke is the SMC mandate, by failing to consider the veteran for SMC.

He was 100% SC for PTSD and had suffered an 1151 stroke-rated at 100%.

I hate to say how long the CUE took to be awarded- my RO cannot read.

It was awarded under both theories

of entitlement but only paid under one theory.

I didnt know the VA had a form for claiming SMC. SMC is mandated by VA case law whenever the medical information warrants it.

Or was it a form to get a medical opinion on?????  A DBQ form????

If the VA committed CUE it will be in their denial.

[Berta]

You raised SMC in a different topic today or yesterday.

This BVA case might help you:

"An award of SMC at the housebound rate may be awarded if the Veteran has a service-connected disability rated as total, and has additional service-connected disability or disabilities independently ratable at 60 percent or more. 38 U.S.C.A. § 1114(s)(1). As noted above, the Court in Bradley held that section 1114(s) does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent, and the Secretary's current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating." See Bradley, 22 Vet. App. at 293. Subsequently, in Buie, the Court clarified that a total disability rating based on individual unemployability that is based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. See Buie, 24 Vet. App. at 250. As discussed above, the Board has awarded the Veteran TDIU as due to a single service-connected disability-fibromyalgia-effective from February 4, 2010. The Veteran currently has additional service-connected disabilities rated 70 percent, 60 percent and 50 percent disabling, respectively, and such ratings have been made effective since prior to February 4, 2010. Thus, SMC at the housebound rate under 38 U.S.C.A. § 1114; 38 C.F.R. § 3.350(i) is also warranted from February 4, 2010. "

"ORDER That portion of the February 9, 2016 Board decision awarding TDIU due to service-connected adjustment disorder and depressed mood and fibromyalgia and SMC at the housebound (s-1) rate effective February 4, 2010 is vacated. Entitlement to TDIU due solely to service-connected fibromyalgia effective February 4, 2010 is granted. Entitlement to the SMC at the housebound (s-1) rate for the period from February 4, 2010 to the present day is granted, subject to the rules and regulations governing the award of monetary benefits."

https://www.va.gov/vetapp16/files2/1612688.txt

This decision rests on Bradley V Peake.

[Berta]

No problem.....sometimes a CUE is obviously within a decision but you seem to have a good handle on the SMC regulations.

I hope you dont take this the wrong way, but any times here over the years I stated I had VAOLA paranoia.

Meaning, I began to expect that they would screw up my claims.

And they did! One of my fastest CUES was filed as an IRIS complaint.

I am still pissed off by it and wonder how many other widows got the same BS.

After filing for AO IHD under Nehmer ( my husband was an AO Incountry Vietnam Vet), after they sent the claim from Buffalo RO to Seattle RO back to Togus RO,then finally at the Nehmer RO division in Philadelphia VARO- they

began to work on my claim. I got an immediate denial stating the veteran did not have evidence of heart disease in his SMRs.

I IRISed them  a request that they CUE themselves on the denial, with the initials on the Alphanumeric code on the decision and it's date ( these hold the initials of the dope who denied my claim and I made the point that probably NO Vietnam incountry vets had evidence of IHD in their SMRs because they were KIDS in Vietnam, and that this denial did not in any way reflect the Nehmer Court Order, and I think I threw in violation of my favorite regulation 38 CFR. 4.6.

Within about three weeks I got the award letter which not only awarded posthumously for the IHD but also awarded for 2 pending CUEs I had, that were contingent on a proper IHD award.

I still wonder if this incompetent rater had pulled the same BS  denial on other widows or even on veterans who didnt know what Nehmer really was about.

38 CFR 4.6

They violated that regulation in a 1998 decision I got and have managed to violate it in almost every claim I have filed since.That's OK---- I like to file CUE against them.

 

 

[vetquest]

From what I have been told there is no precedent on VBA cases, only on court cases.  They (vso's, VA) tell you every claim is different.  That said, I have attempted to cite VBA decisions to no good result. 

[vetquest]

Thanks for the correction jfrei.