Do u see the error

[Mr cue]

 

I hope I did it right.

I just want to get advice and see if anyone see the errors

[Berta]

The BVA did notice what appears to be the examiner's error as to opining on the wrong side of the body (left upper extremity claim) and made a significant statement that I hope a new member here reads- as it was what my advice to him was all about----(what hekps one vet can always help another vet)

The BVA was able to "shift" as they stated the veterans' TDIU, to one sole SC disability.They cite the Buie CAVC case.

But I do not see how that would have brought you to SMC further back than May 9, 2018 as the SMC EED. Was that what you are trying to gain?

 

[Berta]

https://community.hadit.com/topic/82668-do-u-see-the-error/

I wonder if the Buie case will help you=  will post that link later today---

In the above post today from Mr. Cue, the BVA 'shifted' their TDIU award to be solely for One SC disability- and therefore that set this veteran up for SMC consideration.

My thought was to get an IMO/IME that would possibly find you meeting the 100% narcolepsy criteria-

If the rating stated you had narcolepsy with OSA as secondary- or if a IMO doc stated that with a full rationale, that might do it-might --- but the Buie decision might have a better take on what you can do. 

I posted this here hoping others will see it , and also read Mr. Cue's post.

If the BVA can "shift" a TDIU claim, to legally benefit the veteran, we should all be award of that.

I never saw the BVA do that before but it is just common sense and I bet there are Very few BVA claims that would garner the favorable decision that this 'shift' did. 

VA is actually pretty good at recognizing a TDIU award at 70% SC at the RO level.

 

[broncovet]

My 2 cents worth:

Buie vs Shinseki was in 2011, but the Board "only changed" TDIU based on one SC disabilty back to 2018.  What were your SC disabilities in 2011?  This decision suggests your PTSD (or mental health disorder) was not awarded until 2018.  When was your PTSD effective?  

If you were diagnosed with PTSD back to 2011 or earlier, then the decision appears incorrect.  However, if you were only recently awarded PTSD (in 2018), then this suggests the decision is correct.  

More importantly, what did your attorney say, and, if you dont have one you probably can still get one, "provided that" you can get an attorney to accept this for EAJA fees.  (likely).  

Edited November 12, 2020 by broncovet

[Mr cue]

Ok my ? Is why I was not look at for housebound confine to my house there was no need to try an shift my 25 yr. Protect tdiu rating but to take away the protection. 

If u look they stated my tdiu is base off all my disability. And they change it when I got granted PTSD 2018. Under blue.

I was tdiu 60 permeant total why was my cases look at under howell v nicholson. Smh

Because they would owe smc s back until 1993 never work never left my house for income.

Everybody is on this tdiu 60 60 thing

If u get tdiu you can't leave your house to make a income.

Tdiu rule is one condition 60 or combing rating 70.

 

The second qualifying factor for SMC(s) is if the veteran is rendered housebound due to a service-connected disability. If a veteran is unable to leave his or her house, hospital ward, care facility, etc. and the medical condition is not expected to improve, the veteran may qualify for SMCs

why doesn't the bva address this.

did u see that they call smc a catch all benfit were is this stated is this not develop to denied.

loss of use is to b base off remaining. Function. Not your rating code.

why wasn't I give a smc l for my mental health. They speak of  remainder to take medicine and safety. Told me smc l is based off all my condition. Lol

i got a few issues I will post the bva reconsideration soon with more error.

if I have never work in 25 year of tdiu why will they not look at the other avenues to smc s

[Berta]

The Housebound award should be inferred in many claims but isn't ....as the VA focuses instead ,in my opinion, on a 100 SC plus 60% independent SC, that the rating sheet would  reveal.

I feel a HB award depends often on the veteran fully claiming it and supporting it with documented evidence.

In my SMC CUE I supported the fact that VA had,in my dead husband's lifetime , enough documented medical evidence to support either SMC S or HB. The Nehmer decision I got about 8 years later, awarded the CUE claim, as I had reminded them it was still at my VARO, was dependent on my AO IHD claim, and the CUE claim ( 2003) had been filed prior to the AO IHD claim (2010).

VA infers SMC properly ( most of the time I hope) but I hardly think they ever review the entire documented medical picture of the claimant- that can take a long time-to award HB, as I think it is easier for them the award SMC S under the 100 % plus 60% independent disability (ies) because that only involves looking at a rating sheet.

My husband's posthumous rating sheet ,when I assumed his claims after his death, clearly showed 100% P & T Sc plus 60 ( actually it became 100% as well for a 1151 stroke.My dumb vet rep told me not to NOD it because 1151s are different than direct SC- I doubted what he said- but didn't pursue it for years as I had many other issues going on with VA, at the time.I had started to gather evidence for a direct SC death ( awarded in 2009 by the BVA)

I fought them as hard as I could to get them to read the regulations to the 1998 rating sheet, and filed a 1-9 but I think it was Still not transferred to the BVA , almost 8 years later, because the BVA could have awarded in a heartbeat and they wanted to continue my battle at the RO level because I won FTCA death case. Someone told me 1151 was written all over my claims folders. And it includes letters from both regional VA counsel and the VA OGC in DC  ordering them to do some things they failed to do.Like pay me properly.Which they finally did.

There is more to attaining the SMC HB benefit than being unable to work. The stroke had left my husband with severe visual problems, abnormal gait, inability to walk too far, (he also had PN and PAD as well)the VA van had to transport him to and from the VA Day Treatment program, as he could no longer drive, and his memory problems were documented as well, specifically when he was in the 21 day in-house PTSD program and they all took a trip but he got lost. He couldnt remember which way the team leader took the vets, when they got onto the Buffalo VAMC street. He could remember our phone number but could not handle  change so the operator asked me to accept the call. I asked him what was the closest street next to him and anything that identified the buildings and stores around him but he could not see well,due to the stroke and he asked a few people while I was on the phone to tell him where he was- of course being a 6'4" veteran covered with  cameos and the Vietnam stuff on his cap etc, in front of the Buffalo VAMC,no one would help him.

(BTW all-= the Marines in Vietnam 65-66- wore utilities, they never wore cameos- but many started to , after their discharge and put all sorts of patches on them- Vietnam,, POW, ISTMARDIV etc, -because so many other Army,AF,Navy Vietnam vets did.)

I had supported my CUE  that the Nehmer RO awarded with documented evidence of all of above,that was in his C file and VA med rec files when he died. (Thus all in VA's 'possession' when he died- a requirement for CUE ) and Nehmer Phila. VARO awarded SMC under both theories of entitled to him posthumously along with the AO IHD award.

Maybe this 2020 case will help show what I mean- like the other case I posted:

In part:

"8. With regard to SMC housebound benefits, the Veteran does not have a single service-connected disability rated as 100 percent disabling. However, the Veteran’s TDIU rating could be awarded from a single service-connected disability (his eye / vision disability). Moreover, the Veteran had additional service-connected disabilities independently ratable at 60 percent or more when combined, separate and distinct from the eye / vision disability associated with TDIU and involving different anatomical segments or bodily systems. This meets the statutory criteria for housebound benefits. 9. With regard to SMC aid and attendance (A&A) benefits, the Veteran is entitled to SMC at the L-rate based on the need for aid and attendance (A&A) of another person, due solely to the impact of his service-connected bilateral eye / vision disability."

And in light of the analysis above, the Board has also awarded the Veteran SMC on account of being housebound, at the rates set forth under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i).  This is known as SMC at the “S” level.

"However, here, the Veteran seeks an additional award(s) of SMC based on the need for regular aid and attendance, at the higher rates set forth under 38 U.S.C. § 1114(l).  This is known as SMC at the “L” level. "

https://www.va.gov/vetapp20/files7/20049731.txt

This claim is a very long read but reveals lots of good info .

The BVA is a wonderful source of help for many types of claims.

Here is my Housebound search there:

https://www.index.va.gov/search/va/bva_search.jsp?QT=Housebound&EW=SMC&AT=granted&ET=&RPP=10&DB=2020&DB=2019

It takes quite a bit of time to research BVA decisions and I believe the search is often Very well worth the time.

BVA decision are not evidence as they are not precedent setting, and only impact on the claimant of the decision, but the decisions reveal how the BVA thinks and applies VA case to  every claim.

If the BVA makes a legal statement based on VA case law and regs- a claimant can find that decision to see if it should be applied their claim.

Something is bothering me at the BVA- some decisions have been awarded for AO HBP- but others were remanded and all of those vets had used the same evidence I used for my AO HBP claim.....The NAS report. (which I just learned the VA has lost!)

Also I found two BVA cases decided by the same person-at BVA, who awarded on vet for AO HBP but remanded the other vet, and they too had the exact same evidence the ones awarded had, as well as me. I was going to ask attorney Ben Krause about that----have to find time to do that...

 

 

 

 

 

 

Edited November 12, 2020 by Berta

[Mr cue]

Yea the way I see if you get a PT tdiu rating you are housebound.

Congress intended it to be for veteran how are confined to there house. An if you are not able to leave your home to make a income

There is nothing else to it howell v nicholson 

Well my case is at cavc we will see what they come up with.