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SMC S with tdiu (Bradley vs Peake)

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  • Moderator

Ok, so if you have tdiu, then Howell suggests you should also get SMC S..because you are not leaving the home "for work".  

However, at a minimum, read this:

DEPARTMENT OF VETERANS AFFAIRS
Veterans Benefits Administration
Washington, D.C.  20420
July 22, 2009  

 
Director (00/21)
All VA Regional Offices and Centers
In Reply Refer To: 211B
Fast Letter 09-33
SUBJ: Special Monthly Compensation at the Statutory Housebound Rate

This letter provides guidance for adjudicating claims involving entitlement to special monthly compensation (SMC) at the housebound rate based on a decision by the U.S. Court of Appeals for Veterans Claims (CAVC or Court) in Bradley v Peake.  

Background

38 U.S.C. § 1114(s) provides that SMC at the (s) rate will be granted if a veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of a service-connected disability or disabilities.  VA’s implementing regulation at 38 C.F.R. § 3.350(i) essentially mirrors the statutory language.

Prior to the CAVC’s decision in Bradley v. Peake, VA excluded a rating of total disability based on individual unemployability (TDIU) as a basis for a grant of SMC at the (s) rate.  VA relied upon language in citing VAOPGCPREC 6-99, dated June 7, 1999, in which the General Counsel stated that a TDIU rating takes into account all of a veteran’s service-connected disabilities and that considering a TDIU rating and a schedular rating in determining eligibility for SMC would conflict with the requirement for “additional” disability of 60 percent or more by counting the same disability twice.  

On November 26, 2008, the Court, in Bradley v. Peake, disagreed with VA’s interpretation and held that the provisions of section 1114(s) do not limit a “service-connected disability rated as total” to only a schedular 100 percent rating.  The Court found the opinion too expansive because it was possible that there would be no duplicate counting of disabilities if a veteran was awarded TDIU based on a single disability and thereafter received disability ratings for other conditions.  

The Court’s holding allows a TDIU rating to serve as the “total” service-connected disability, if the TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to SMC at the (s) rate.  

The Court held that the requirement for a single “service-connected disability rated as total” cannot be satisfied by a combination of disabilities.  Multiple service-connected disabilities that combine to 70 percent or more and establish entitlement to TDIU under 38 C.F.R. § 4.16(a) cannot be treated as a single “service-connected disability rated as total” for purposes of entitlement to SMC at the (s) rate.

New Evidentiary Standard

Based on the Court’s decision in Bradley, entitlement to SMC at the (s) rate will now be granted for TDIU recipients if the TDIU evaluation was, or can be, predicated upon a single disability and (1) there exists additional disability or disabilities independently ratable at 60 percent or more, or (2) the veteran is permanently housebound by reason of a service-connected disability or disabilities.  

For example, a veteran in receipt of TDIU based on a 70 percent evaluation for post- traumatic stress disorder (PTSD) and other service-connected disabilities consisting of a below-the-knee amputation, rated 40 percent disabling; tinnitus, rated 10 percent disabling; and diabetes mellitus, rated 20 percent disabling, would be entitled to SMC at the (s) rate if it is determined that PTSD is the sole cause of the unemployability, as the other disabilities have a combined evaluation of 60 percent.  

It is important that, for purposes of section 1114(s)(1), no disability is considered twice to ensure that the prohibition against pyramiding contained in 38 C.F.R. § 4.14 is not violated when determining which disability results in TDIU entitlement and in determining which disability or disabilities satisfy the independent 60 percent evaluation to award SMC at the (s) rate.  

However, for purposes of section 1114(s)(2), a disability may be considered in determining TDIU entitlement as well as in determining whether a veteran is permanently housebound as a result of service-connected disability or disabilities because that provision does not specify “additional service-connected disability or disabilities” as in section 1114(s)(1).

Accordingly, a determination for entitlement to SMC at the (s) rate must be made in all TDIU cases where potential entitlement to SMC (s) is reasonably raised by the evidence. 

 Current Status

Regulations and M21-1MR, IV.ii.2.H.46.a will be revised to comply with the Court’s decision.  In the interim, the Court’s holding will be applied to all pending and future claims.  

In applying the Court’s holding, if the medical evidence is insufficient to render an adjudicative determination as to whether the veteran’s TDIU entitlement solely originates from a single service-connected disability, and there is potential entitlement to SMC at the (s) rate, the veteran should be scheduled for a VA examination to include an opinion as to the cause of unemployability.  

Questions

Questions concerning this fast letter and other issues related to this issue should be submitted to the VAVBAWAS/CO/21FL mailbox.
 
 
 
  •  

Sep 19, 2010#2

Here is one example where a veteran was rated TDIU, until 2003, when he was awarded 100 Schedular , he requested SMC housebound based on Bradley v peake

The BVA found that he was entitled to the SMC S based on TDIU and a seperate combined rating of 60% , retroactively .

http://www4.va.gov/vetapp09/files4/0935536.txt

The Board notes that the TDIU rating was discontinued
effective April 8, 2003, the date that the Veteran's combined
disability rating increased to 100 percent schedularly.
Therefore, the Veteran currently does not have a TDIU.
However, the Board finds that to deny this claim on the basis
that the Veteran no longer has a disability rated as totally
disabling under 38 C.F.R. § 4.16 would lead to an absurd
result, that result being that he would be entitled to a
higher special monthly compensation rating, as explained
above, so long as his combined rating remained at 90 percent
or less, but would not be entitled to a higher compensation
rating even though one disability still renders him
unemployable and other disabilities have worsened such that a
100 percent combined schedular rating results. The Board
does not believe that the Bradley decision and/or the statute
intended such an absurd result and finds that the Veteran has
a single service-connected disability ratable as totally
disabling based on individual unemployability and additional
disabilities separately ratable at 60 percent.



So like I said in another thread if you were TDIU for one disability and had or have a seperate 60% rating and the va did not award you Housebound SMC S,  get your claim in.
100% schedular
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The letter was issued in 2009. As with any interpretation, it has been superseded by a host of progeny-most notably Buie v Shinseki two years later.Nothing has invalidated Howell or Buie to date.

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Yes, Buie.  You did a great job explaining Howell vs Shinseki.   Did you notice how the VA "slid this anti Veteran interpretion in Howell"?

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

The VA went from THIS:  (congress intent, which should be "the end of the matter"):

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.

to THIS:

Quote

V.ii.2.H.10.f.  Determining Whether the Veteran Is Substantially Confined for Housebound in Fact Entitlement

 

A housebound in fact determination requires a Veteran’s inability to leave his /her place of residence and immediate premises in order to earn any income.  However, it does not require a total inability to leave the place of residence and immediate premises for all circumstances.  Leaving home for medical purposes cannot, by itself, serve as the basis for finding that a Veteran is not substantially confined for purposes of SMC housebound benefits.  The limitations must be the result of the Veteran’s SC disabilities.
 
Non-medical indicators of housebound status may include but are not limited to
  • inability to walk substantial distances
  • leaving the home with assistance only occasionally for
    • appointments
    • grocery shopping, or
    • church, or
  • inability to mow one’s lawn. 
Example 1:  A Veteran is totally disabled due to SC diabetes mellitus and related complications.  He leaves his house weekly for dialysis treatment.  His SC conditions limit his ability to independently ambulate to less than 30 feet before requiring significant rest.  The Veteran is entitled to SMC based on housebound in fact status as his inability to leave the home other than for medical visits demonstrates substantial confinement to place of residence and immediate premises.  Furthermore, the diabetes mellitus and complications are so disabling that he is rendered unable to leave his residence and immediate premises to earn income.
 
Example 2:  A Veteran is SC for multiple disabilities including CAD, which is totally disabling.  His wife drives him to all medical appointments.  If the Veteran experiences a good day, they may run some minor errands while out of the home.  The Veteran is entitled to SMC based on housebound in fact status as leaving his home for medical visits does not preclude a finding of substantial confinement to his dwelling or immediate premises.  Furthermore, the other visits where the Veteran’s activity is limited to minor errands does not preclude a finding of substantial confinement since the Veteran is not shown to be able to leave his place of residence and immediate premises in order to earn income.
 
Reference:  For more information on determining whether a Veteran is substantially confined for the purposes of housebound determinations, see

Source:  https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014571/M21-1,-Part-IV,-Subpart-ii,-Chapter-2,-Section-H---Special-Monthly-Compensation-(SMC)

     Did you miss this 3 card monte?   Congress intended SMC S to be for Vets "unable to leave their home for work".  The VA interpreted THAT to mean that A Veteran can go shopping, to church, or appointments.  What happened to "not leaving the home for work?"  

    "Not leaving the home for work" would suggest that any TDIU Vet would be unable to leave the home for work, because he is, by defination unable to to maintain SGE due to SC conditions.  

Edited by broncovet
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  • Moderator

Buie served to water it down even more:

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014555/Buie-v.-Shinseki,-Mar-23,-2010,-24-Vet.App.-242

In relevant part, VA said this about BUIE:

Quote

Impact on VBA:

No regulatory revision or manual change is required.

Zip, zilch nada.  Buie means "nothing" according to VA.  While I dont agree, this is "all about" "whose" opinion this is.  

Is it Buie?  Is it the VA m21?  No.  The case hinges, as usual, on "congress intent".  And, VA intends to water that down as much as possible and conflate the issue in order to give more opportunities to deny.  

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Im currently fighting VA on SMC S.  If they bring up "non criteria", such as whether or not I can go "shopping" "to church" or "to appointments" ONLY,   

IF DENIED at the Board: 

Im  gonna try to find a lawyer to take them to task on this one.  VA has to rate on the criteria, and this M21 horse puckey has nothing to do with whether or not a Veteran can leave the home "for work" or not, as congress intended.  

The VA made up stuff on previous denials, they said my hearing loss was denied because it was "too long since military service", and that isnt one of the criteria, either.  

 

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