RAMP: SMC S denial

[broncovet]

I just got the envelope yesterday.  SMC S was denied "even tho" my doc gave evidence that I was homebound, and, of course, I have not worked since 2003, and should be eligible for SMC S per Howell.

(From Alex website)

https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

In relevant part:

Quote

 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.

 

I noticed that the M21 manual "includes" references to Howell, but, that does not mean this rating specialist read it.  He also did not read my evidence.  Of course, I knew that GS9 rating specialists dont have the authority to award when it could mean 5 or 6 figure retro's, so its off to the BVA I go.  

I am considering Berta's "cue method" even when the decision is appealable, since it is cue to not adjuticate smc s, whenever a single 100 percent is awarded (according to M21 Mr).  

[broncovet]

Very well, Alex, and thank you for the help, in advance.  The denial reads:

Quote

A claimant may request readjutication of a previously denied claim, if new and relevant evidence is received.......

..... In support of your claim, new and relevant evidence has been received and your claim is now reconsidered.  The claim for entitlmenet to SMC based on being housebound is reconsidered; however, it remains denied.  

Housebound benefits are payable if the Veteran has a single disability ratable at 100 percent and additional disabiliities independently ratable at 60 percent or more; or if the Veteran is substantially confined to his or her dwelling and immediate premises due to disability (specified in 38 CFR 3.350)

SMC under 38 USC 1114(s) is payable for being permanently housbound by reason of SC disability or disabilities.  This requirement is met when the veteran is substantially confined as a direct result of sc disabilities ........

.....There is no indication that the claimant is substantially confined to his/her dwelling and immediate premisis due to disability, nor that he/she has a single service connected disability rated as totally disabling and additional sc disabilities that are independtly evaluated as 60 percent disabling.  

Favorable findings identified in this decision:  

VA A and A exam dated April 12, 2015.  VAMC Dayton treatment records..

 

Glaringly unincluded was evidence in a MARCH 2015 exam where my doctor said I was "homebound".  

[broncovet]

Berta has suggested a CUE, in some cases, when the VA "doesnt read" our evidence, which would appear to be the case, even when the claim is in the 1 year appeal period.  She seems to have had good luck using 38 CFR 4.6 with her CUE's, and this would appear to apply here.  

In 2009, my VARO decision stated:

Quote

5. Entitlement to special monthly pension based on Housebound.

While not specifically claimed or appealed by the veteran, de novo review of the

evidence in connection with his Notice of Disagreement shows entitlement to special

monthly pension based on Housebound.

Entitlement to special monthly pension based on Housebound is granted where the

veteran has a single disability evaluated at 100 percent and has other disabilities that can

be independently evaluated at a separate 60 percent evaluation; or when the evidence

shows the veteran is Housebound "in-fact."

The veteran meets the criteria for special monthly pension based on Housebound as of

September 25,2007, the date his VA treatment reports show he began use of a CPAP

machine for treatment of his nonservice connected sleep apnea (warranting a 50 percent

evaluation for pension purposes) as the veteran has a single disability evaluated at 100

percent disabling as of his date (i.e., his service connected depression) and his other

service connected and nonservice connected disabilities (including his nonservice

connected sleep apnea) combine to an independent separate evaluation of 60 percent.

Therefore, entitlement to special monthly pension based on Housebound is granted,

effective September 25,2007.

Please Note: While service connected disabilities and nonservice connected disabilities

may be used in determining entitlement to special monthly pension, only service

connected disabilities may be uses in determining entitlement to special monthly

compensation.

 

[Berta]

"Please Note: While service connected disabilities and nonservice connected disabilities

may be used in determining entitlement to special monthly pension, only service

connected disabilities may be uses in determining entitlement to special monthly

compensation."

Unfortunately that is true. Broncovet, when did the pension become Service Connected comp?

My SMC CUE is here - somewhere- it only took 7 years to award. My RO cant read.

The Nehmer VARO awarded it, and another CUE I had pending by then for 6 years.

Then again it was awarded under both SMC S theories-maybe it wont help.

BUT: you said:

"Glaringly unincluded was evidence in a MARCH 2015 exam where my doctor said I was "homebound".  

Did the doc give any rationale for that?

Since they did not use this as evidence, it could be a CUE under 4.6 but is there any other evidence of Housebound? Such as- are you unable to drive due to SCs, are you unable to walk too far due to SCs, do SC meds cause you confusion or memory problems, do you have  a diagnosis of agoraphobia?

These are just general concerns- not really applying to you-BUT

Depression alone can make anyone housebound, as depressed people often do not want to participate in family gatherings, or deal with too many other people.

The Housebound is a tricky benefit.The 100% plus 60  is an obvious SMC S benefit.

The March 2015 exam might hold more info as to how you are housebound by SCs.

When my husband had a claim pending for higher PTSD rating, his mental health records were not part of his VA med rec file- for some odd reason.

In spite of considerable MH tests , and in spite of a SSDI award for PTSD, the VA still denied his claim, after he died.

I went right over to his VA psyche and showed him the SSDI award letter and asked why the VA did not consider his extensive VA records ( to include 2 hospitalizations for PTSD). The Doc immediately pulled put his files, and said he would write to the VARO himself, and send them some of those records ,to include a long assessment he had made, ( and he mailed  me copies of them as well), and within a few weeks the VA reversed their PTSD denial and awarded 100% P & T for SC PTSD with a very favorable EED....the same date SSA had given him.

Right in the decision they listed as evidence of what Dr. XXXXX had sent to them, also stating the doctor had seen the SSA award letter, an award based solely on his VA MH health care.

It was an accrued award, containing the Chapter 35 stuff etc,because I was the claimant due to his death.

Is it possible that your treatment records for 100% SC depression are missing from whatever the VA has accessed?

 

 

 

 

[broncovet]

I got up early this AM to find that BERTA had responded!!! Awesome!!!  I had hoped Berta and or Alex would respond.    Berta asked:

Quote

when did the pension become Service Connected comp?

      In answer to your question, Berta, as to when my pension became SC, I was awarded 100 percent SC in a 2009 decision effective in 2006.  Later, I was also awarded TDIU from 2004-2006, and that 2004 effective date is  currently under appeal at the CAVC docket 17-4668 .    Im represented by Chris Attig, BUT only at the CAVC level.    For BVA-VARO issues, Im currently pro se.   Chris Attig insisted on it that way, and that is great for me, because eaja will pay my attorney fees at the cavc, and Im pretty comfortable at the BVA-VARO, so I pay no attorney fees.  

     In 2006, a month after I got married, I wrote VA and told them I was no longer eligible for pension because my (new spouse) was a nurse and earned far above the pension level requirements, and to "change" it to compensation, instead.  They removed pension in a decision about 18 months later, and said I owed them 6000 because they had over paid me.  I appealed to debt management, explaining that it was not my fault it took VA 18 months and they continued to pay me pension.  Debt management agreed and "waived" my debt. 

       In other words, the 2009 VARO decision "awarding pension SMP housebound" was in error because I had admitted I was no longer eligible for pension 3 years previously.  (I just thought of that!! ) . That is, the 2009 decision was Cue because it awarded pension smp housebound, when I specifically stated I was ineligible for pension because of household income exceeding pension limits.  

      To answer your other question, "Did my doc give a rationale for (his statement I was housebound)?"   

      Yes, he did.  I had explained Howell to him which explains that "Congress intended (that SMC S) be for Veterans who can not leave the home FOR WORK, as opposed to Vets who cant leave the home at all".  See Alex post on SMC S:

https://asknod.org/2014/0a8/25/cavc-howell-v-nicholson-what-smc-s-really-says/ . Alex highlighted this in RED.  

        So, my doc explained that I had not been able to leave the home "to earn an income" because I had not been able to work since 2001.  

        My doc is legally blind and he is very sympathetic to sensory deprivation:  That is, my hearing loss.  

       To answer your last question:  I do have the RBA and, the medical records from 2015 are there, along with the 2009 VARO decision...but the medical records are very lengthy..more than 1500 pages..so its not real suprising they did not read them.  Sort of.  

        I have to decide which RAMP BVA appeal...with a hearing..with new evidence..or with neither.  Well, I really dont hear well enough to do a successful hearing, even tho my hearing loss is only 20%.  Im thinking of "sending a transcript" of my testimony, asking it be admitted as new and relevant evidence.  

        OR, I can try a CUE and "wait" to appeal to the BVA because I have until Feb. 8, 2020 to timely appeal.  I have been fighting VA for benefits since 2002..and I would like to get it over with!!!  

        My SMC S case..if successful..may be good for many other VETS.  Especially if I persue the HOWELL criteria.  Interestingly, I saw the M21mr, and it includes a reference to Howell.  An SMC S award under Howell would likely be a much earlier effective date than other Veteran hypothesis for SMC S.  Im unaware of any other Vet getting SMC S because of Howell.  

 

Edited February 23, 2019 by broncovet

[Berta]

"when my pension became SC, I was awarded 100 percent SC in a 2009 decision effective in 2006. "

Can you scan and attach that decision here Broncovet? With the evidence list?

WOW you have been through a lot with this-

I am not very familiar with Howell- and I am trying to search it at the BVA.

In two decisions the BVA states:

"In this regard, in Howell v. Nicholson, 19 Vet. App. 535, 539-40 (2006) (precedential decision) it was stated that SMC at the housebound rate "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." Because the meaning of the term 'substantially confined' is ambiguous and there is no regulatory interpretation, the Court defined "substantially confined" to mean that leaving one's house for medical purposes cannot, by itself, serve as the basis for finding that a veteran is not substantially confined for purposes of SMC-HB benefits. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006).

I honed in on this phrase:

"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.'

If a disability is reasonably certain to last the veteran's lifetime, of course the 100% should be P & T-therefore if the 100% is P & T, it seems evidence of any of above ,to prove 'substantially confined' should warrant HB.

Is your 100% a P & T rating?

I have not found yet any BVA decision that clarifies this:

 "Congress intended (that SMC S) be for Veterans who can not leave the home FOR WORK, as opposed to Vets who cant leave the home at all".  

But will try to find something.

 

[Buck52]

They have my EED all screwed up  

first filed in 1998 denied appeal and won Service connection in 1999  but at 0%  then Appeal that decision and won 50% in 2000.  no EED or retro

That was my mistake for not appealing that decision for the retro  my time limits expired

Then had a Batched up C&P For increase in 2002. won that increase at a DRO Hearing with New & Material Evidence  and won tinnitus 10% and a 30% increase and was giving TDIU P/T.@ 90%COMBINED 

The  Effective date was back to 2000 WHEN I FILED FOR THE INCREASE AFTER THE 50%S.C.

However it says on ebenefits the EED is for 2002  date I won the IU  and they said although we paid you back to 1999.the date you stopped working..(I can't find that letter)

Flip Heligic  notice it  but my appeals was up. (Flip is not on Hadit anymore)   this all was back in 2002/2003

Oh well Live and learn with the VA