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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Do u see the error


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  • HadIt.com Elder

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?

 

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  • HadIt.com Elder

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.

 

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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).  

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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

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    • By Mr cue
      Upon consideration of the foregoing, the portion of the January 30, 2020, Board decision
      finding that Mr October 2018 NOD did not encompass that portion of the July 5, 2018,
      rating decision granting a 70% evaluation, but no higher, for a psychiatric disorder is REVERSED
      and the matter is REMANDED for further adjudication; the portions of the January 30, 2020,
      Board decision denying an effective date before May 9, 2018, for the grant of SMC and entitlement
      to SMC in excess of the housebound rate, from May 9 to July 17, 2018, and at the aid-and-
      attendance rate from that point are SET ASIDE and the matters are REMANDED for further
      development, if necessary, and readjudication consistent with this decision; and the balance of the appeal is dismiss
      I will post whole decision soon thank everyone for listening to my venting
      the fight go on but at least they got take it serious now I hope smh
       
    • By Mr cue
      This is the only way to copy it but I would think I won. I think there saying I can bring up the smc s howell v nicholson and they must address it this time. I could be wrong.
      It's still going to the judge we will see
       
       
      Partial vacatur and remand of the Board decision are warranted
      First, remand is warranted to the extent that the Board’s decision failed to 
      address Appellant’s arguments about entitlement to higher levels of special 
      monthly compensation (SMC). Robinson v. Peake, 21 Vet.App. 545, 552 (2008)
      (providing that the Board is required to address issues raised by either the 
      claimant or the evidence of record), aff’d sub nom. Robinson v. Shi
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      levels.” [R. at 6]. The Board addressed SMC at those levels. See [R. at 6-11]. 
      However, the Board failed to address numerous statements arguing that 
      Appellant is entitled to higher levels of SMC, including SMC-R and O. See, e.g.,
      [R. at 1131-32; 414-18; 351]; see also App. Brf. at 2, 3, 10, 14. Thus, remand is 
      warranted for the Board to address Appellant’s arguments about entitlement to 
      higher levels SMC. 
      Second, vacatur of the Board’s assignment of effective dates for the 
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      that particular matter, the Board could not have assigned an effective date in the 
      first instance. 38 U.S.C. § 511; 38 U.S.C. § 7104(a); see also Disabled Am. 
      Veterans v. Sec'y of Veterans Affairs, 419 F.3d 1317, 1319 (Fed. Cir. 
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      Here, the Board determined that Appellant was entitled to (1) SMC-S, from 
      May 9, 2018 until July 17, 2018, and (2) SMC-L, from July 17, 2018. [R. at 3]. 
      But, the RO, in a subsequent decision that implements a Board decision 
      regarding the appropriate effective date for these awards, as an inferior tribunal, 
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      changed by the RO. See Brown v. West, 203 F.3d 1378, 1381
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      higher tribunal."). The Board’s actions effectively deprive Appellant of the 
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      agency adjudication, and the opportunity to have the Board address the issue of 
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      make arguments about the appropriate effective dates for his awards of SMC-S 
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      1
      Finally, remand is warranted for the Board to provide an adequate 
      statement of reasons or base about its finding that Appellant did not appeal the 
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      evaluation, but he failed to do so.” [R. at 5]. However, the Board did not address 
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      other,” “neck,” and “and all other.” [R. at 347]. Appellant also added that, “I am 
      NOD both decision you deferred issue and may two decision on my claims I put 
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    • By Mr cue
      Ok this is what I get from the conversation.
      They are ask the judge to remand and vacated some issue.
      Now they didn't address all issues.
      I put in my reply brief but now they got 7-12 days to get my record proceeding to the judge. Even told me I could be over by the began or middle of February. Lol we see
      When there brief comes in mail I will be able to post.
      Ok it seem to me if u didn't fight anything I said in my brief. And now the judge has to look at what we both said in our briefs
      It should be a good decision. I am hoping
      They ask for remand for smc s effective date. But not a word on my howell v nicholson issues. We will see what the court say 
      They are asking for remand of smc l effective date.
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      They even vacated the I didn't appeal my mental health 70 rating.
      The bva decision stated it total but I did appeal it so they didn't rate it smh 
      As I am writing this it seem I really won my cases guys.
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      Well today was the day for the secretary brief on my case.
      I look at the secretary brief it is asking for a vacated and partial remand
      To address effective dated for smc and smc r and o and to rated my mental health it 70 and they told me I didn't appeal for the total rating.
      After doctor report and comp exam stated total.
       
      The effective date remand doesn't address howell v. Nicholson lol 
      Guess there going to granted it to never be percented. Like they did howell it was a remand. We will see lol 
      I am a little old I ain't been able to upload it yet.
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    • By Mr cue
      Man this is more stressful then went I fought for tdiu. 2000
      In my brief I point out that the board has only use the tdiu 60 60 for smc s 
      And never address that I am permanently housebound which is the other crertia for smc s 
      Iam pt tdiu which means I will never leave my house to make income. And have not in the 20 years of tdiu 
      The board never address the many employment  verification and income statement that are part of my record and are given to veteran tdiu.
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      Every bva decision I have look at on smc s never address this it always tdiu 60 60. So I press the issue.
       
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      Ok I am done i be needing to vent lol
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
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