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...?

[broncovet]

You CAN use BVA cases, but they are not "precedential".  However, go ahead and read the applicable BVA case, and they often cite the "precedential case" to which they came to the conclusion.  

Then, better is to cite the "precedential case" as they have to go by precedent.  

Precedential cases:  CAVC which are "en banc" or "panel".  Single judge CAVC cases are also non precedential.   All "federal circuit" and US Supreme court cases are precedential.  

Non precedential:  BVA (any) and CAVC "single judge".  

[Berta]

Burnedoutvet ----Do you want them to reconsider a denial of SMC?

SMC is pretty cut and dried for the S award.If the evidence they have warrants SMC S and they ignore it, and never consider the claimant for SMC S, this is a CUE.

Broncovet is 100% right. BVA decisions contain Precedential cases that support their reasons and bases.

The USCAVC web site has all of those cases.

 

Edited April 5, 2018 by Berta

[Buck52]

Burnedoutvet, I Agree with broncovet & Ms berta, but

What makes you think you are entitled to SMC?

Do you have another separate and distinct 60% S.C. Disability above a S.C. 100% rating?

if you were granted a 60% or more for another S.C. DISABILITY it is the VA  responsibility to Infer the SMC at the time of this new rating , if they didn't then that's the CUE Ms berta mention.

It is assumed the VA knows the veteran expects to be fully adjudicated to the fullest extent of the law with his claims at the time a decision is made.

Not knowing your case/claim  if this is what happen to you ask the VA to CUE Themself and award the appropriate SMC Award letter to go back to the Date of the decision for your 60% separate claim.

[burnedoutvet]

4 hours ago, Berta said:

Burnedoutvet ----Do you want them to reconsider a denial of SMC?

SMC is pretty cut and dried for the S award.If the evidence they have warrants SMC S and they ignore it, and never consider the claimant for SMC S, this is a CUE.

Broncovet is 100% right. BVA decisions contain Precedential cases that support their reasons and bases.

The USCAVC web site has all of those cases.

 

you have providing great information. yes I do believe I have a CUE and I did file for it based on SMC. I haven't really asked questions about it because there is soo much info hear. very helpful.

 

My denial letter said they sent me forms 2 years go to get SMC and the fact I ignored it is grounds for denial...plus me not being incompetent, I actually am incompetent and need someone to handle my finances but I don't trust my family and I've lost all my friends. 

[broncovet]

I have no idea how VA can get away with denying any TDIU vet SMC S, because he cant "leave his home for work" if he is not working, reminding you of Howell:

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.

[burnedoutvet]

42 minutes ago, Berta said:

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.

I'm not ignoring you and I am thankful for your attention to my post. I just don't feel comfortable posting my decision letter..I do have paranoia issues, but you are helping me! I'm not trying to come off rude, my manners have gone out the window.