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

[Mr cue]

My belief is the bva doesn't want this to go back to court. 

It will open a can of worms.

I mean look at all the shifting of tdiu in the bva decision

To not address smc s housebound by fact.

I was also granted tdiu pt 60 one condition 2001.  No smc s was inferred.

2012 I was granted extra schular tdiu 1993-2001 no smc s was inferred.

I apply the va bva only address the time from filing.

Yes I think this is a big cases and bva don't want a court to rule on this.

Howell was also a cavc remand to never be seen again

[FormerMember]

Your decision is the "instant appeal" you show above. Always remember the VA is not required to conduct an unguided safari through your claims file in search of any and all entitlements. While SMC must be awarded the moment it can be ascertained it is due, in order to crack this nut open you sometimes have to file a  claim to remind VA they forgot. VA is not much of a self-starter and will pretend not to "see" an inferred ancillary benefit like SMC S-most especially under §3.350(i)(2). 

Far too many Vets think that just because you have a 100% schedular or TDIU, you automatically qualify for SMC S under Howell v Nicholson. Not so. You actually need to have a doctor's nexus or equivalent IMO stating you are (were) medically unable to leave your home. Medically unable can encompass agoraphobia due to MDD. It's not a strictly physical thing. You cannot say just because you don't have a wheelchair-type ramp to walk out of the house that it substantially confines you to your domicile.

Legally speaking, failure to award SMC is not CUE. It's just a "mistake" that can be corrected at any time. Akles v. Derwinski says the VA is supposed to make that determination at such time as when you qualify. SMC has been described as a "quality of life" issue after you attain the requisite precursors to entitlement. SMC doesn't fall into the narrow confines of a claim as such. 

The paramount phrase in §3.350(i)(2) is:

" Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises..."

To be declared "permanently housebound" or "substantially confined", you usually need a VA Form 21-2680 filled out by a doctor stating as much. The form is used not only for housebound determinations but also for SMC (l) Aid and Attendance determinations. Generally speaking, no 2680 w/o housebound or a&a determination = no dice. VA likes to reserve the right to determine entitlement to SMC to themselves. 

I have found the absence of the 2680 at any time prior to the BVA decision granting SMC (l) or (s) which would provide the needed evidence to show an earlier entitlement is the problem. I've won SMC (l) claims without a 2680 but I had doctors who had written in the Vet's records that the Vet couldn't hold a spoon to eat oatmeal or get dressed without help... or couldn't be trusted to take his meds... or any of the myriad reasons listed under §3.352. The important thing in winning a&a (or housebound w/o the extra 60%) is to show in your contemporary medical records where a doctor specifically pointed out you were substantially confined or listed activities of daily living your were incapable of (that are on the list in §3.352)-not a legal determination that you needed a&a in haec verba. Remember, a doctor  cannot make legal determinations. By the same token, BVA judges can't make medical determinations-Colvin v. Derwinski (1991). 

As I mentioned above, you could claim a violation of §3.103(a) (a decision which grants every benefit that can be supported in law) on the failure to award SMC (s) prior to 2018 but again, you would have to have the medical evidence to win it. I rarely attack failure to award SMC using CUE. Why make it difficult? The legal standard of review is that SMC requires no claim. It's an ancillary benefit arrived at by the determination of the evidence of record. Akles v Dewinski (1991) demands VA perform an analysis as to whether you are entitled to it (SMC) at any SMC rate the moment you qualify. You're free to file a 995 and ask VA to determine if you were entitled to SMC (s) at any time between the 12/93  award of IU and the eventual award of SMC (l) in 2018. I'd provide them the evidence, whatever it was or is, that sustains your contention. It must have been in your VAMC VistA records or claims file in order to be considered -Bell v. Derwinski (1992). Bell was decided October 31, 1992 so your TDIU determination falls within it's precedence if you feel you want to use CUE.

As for Buie "rearranging" precedence, you got a good VLJ who awarded it. From what the VLJ wrote, you did not have the requisite disabilities to qualify for SMC at any rate prior to 2018 determination. 

Best of luck sir.  

  

[Mr cue]

Asknod I read one of your smc r cases Its also got remand to address smc r 

This is the cavc remand which address the effective dates.

Given this disposition, the Court need not address any additional arguments, which could 
not result in a remedy greater than remand. In accordance with Kutscherousky v. West, 
12 Vet.App. 369, 372-73 (1999) (per curiam order), Mr. is free to submit any additional 
arguments and evidence on remand, including his assertion that VA failed to obtain relevant 
independent living program records and any other arguments raised in his briefs to this Court. The 
Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 
529, 534 (2002). The Court reminds the Board that "[a] remand is meant to entail a critical 
examination of the justification for the [Board's] decision," Fletcher v. Derwinski, 1 Vet.App. 394, 
397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
IV. CONCLUSION
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 DISMISSED.

[Mr cue]

Maybe this will help explain where I feel I should have been inferred smc 

This is the bva decision  2009 that granted my tdiu 1993-2001 after my cue.

It even address my need of help of other also. But smc wasn't inferred.

 

Analysis of Entitlement to TDIU

During the period prior to August 16, 2001, two service-connected disabilities must be considered - cervical spondylosis with chronic muscle strain of the left neck, rated at 20 percent disabling, effective December 14, 1993, and residuals of a left elbow fracture with paresthesias, rated at 20 percent disabling, effective December 14, 1993.  Therefore, with respect to this period, the Veteran does not meet the schedular criteria for consideration of TDIU.  See 38 C.F.R. § 4.16(a) (2001-2011).  A TDIU is in effect since August 16, 2001, and this is based in part on the increase in the disability rating for the Veteran's cervical spine disability from 20 percent to 60 percent, effective that date.  The Board has specifically found that a rating in excess of 20 percent for the cervical spine disability is not warranted prior to August 16, 2001 on a schedular or extraschedular basis.  Therefore, the Board's decision here hinges on a finding that, irrespective of the above factual background, the combined effect of the Veteran's service-connected disabilities renders him unable to secure and follow a substantially gainful occupation.  

The current effective date for TDIU of August 16, 2001 is not based on a change in his physical condition on that date, but is based on the date the claim for TDIU was received at the RO; however, the Board found in its July 2009 decision that the claim for TDIU actually arose from the Veteran's January 11, 1994 original claim for compensation, as a component of the appealed initial rating for a left neck disability assigned in the resulting June 1994 rating decision.  In this context, the current effective date of August 16, 2001 has little to support it.  The Board's decision must be based primarily on the impairment resulting from service-connected disabilities before August 16, 2001, and whether such impairment precluded a substantially gainful occupation.  For reasons that will next be addressed, the Board finds that the evidence for and against such a finding is in equipoise.  

The Board is most persuaded by what appears to be a consistent level of overall occupational impairment over the entire period since service.  While the particular factors such as limitation of motion and attacks of intervertebral disc syndrome may have changed over this period, the evidence indicates that the effect on occupational impairment has remained largely the same.  A VA examination in April 1994 reveals that the Veteran was not working because of his injured neck and left arm at that time.  In that examination, and in a February 1997 examination, the Veteran reported decreased sensation and pain associated with most activities, and especially attempting to lift.  In a November 2000 physical therapy initial evaluation, it was noted that the onset of chronic pain was five to six years prior.  A June 2001 report indicates a five-year history of increased pain and neck stiffness.  

In May 2003, the Veteran's girlfriend stated that she had been in a relationship with the Veteran for 13 years.  She noted that, for this period, the Veteran could not play with his son or daughter because of his neck, that he was not able to hold his son because of the lack of feeling in his hand, and that he was not able to contribute to household chores such as mowing the lawn, taking out the garbage or even minor repairs.  Thus, regardless of the specific findings pertinent to the rating schedule that were present during this period, the overall effect of the disabilities on the Veteran's employment appears to be roughly the same as it was and is after August 16, 2001.  

Regarding the medical opinion evidence, this evidence is generally favorable to a finding that the Veteran's service-connected disabilities precluded a substantially gainful occupation from December 14, 1993 (the first day after service separation) to August 16, 2001.  A July 2003 VA examination includes the opinion that the Veteran had been unemployed since service separation.  The examiner felt that the likelihood of his returning to work was slim.  While this opinion is after August 2001, it deals with the entire period since service separation.  

In a June 2010 addendum to a January 2010 VA examination report, the VA examiner specifically commented on the Veteran's employability from April 1994 through August 2001.  The examiner opined that the Veteran could only stand one hour at a time.  He could only walk with a neck brace up to 45 minutes.  Without a brace, he could walk 20 minutes.  He had severe restrictions with any bending, lifting, and twisting, as well as reaching and grabbing with his left hand.  The examiner noted that the Veteran's skill set was that of a tanker, and that he could obtain employment with the above restrictions.  

There are other opinions indicating that only sedentary work would be appropriate for the Veteran, notably, a November 2003 private opinion.  A January 1995 vocational rehabilitation counseling summary notes that the Veteran had an impairment of employability.  It was noted that the Veteran was educationally disadvantaged and restricted as to the types of jobs he would qualify for.  It was specifically noted that the Veteran "cannot perform any jobs that require excessive physical demands, yet on the other hand, these are the only types of jobs that he's really qualified to do from an educational standpoint."  The counselor noted that the Veteran has not overcome the effects of the impairment of his employability and he does not have suitable job skills to offer the civilian job market, either from training or work history.  

A January 2001 counseling record for VA vocational rehabilitation notes that the Veteran has some employment impairments including that physical labor is difficult, overhead lifting and heavy lifting are precluded.  According to the January 2001 examiner, the Veteran could not do entry-level manual jobs.  The examiner recommended that the Veteran become trained to be a computer technician.  A narrative summary includes the assessment that the Veteran's service-connected neck condition limits him from doing any overhead or heavy lifting and that he lacks suitable skills to find employment that is not physically demanding.  The Veteran ultimately withdrew from vocational rehabilitation due to complaints of headaches, which he attributed to his neck.  

A March 2011 VA social and industrial survey notes that the Veteran's service-connected neck condition and non service-connected disabilities place him at a competitive disadvantage in obtaining employment when competing with jobs for the nondisabled, as he is not able to do any jobs that require excessive physical demands.  The examiner noted the findings in the vocational rehabilitation file, as well as the factors such as the Veteran's substance abuse.  The examiner provided the opinion that, with the Veteran's limited education and work experience, the type of work he could do would be primarily physical; this would be compromised by his physical disabilities, including service-connected disabilities.  The examiner continued that it is clear that the Veteran's service-connected disabilities disabilities had a notable impact on his ability to obtain and maintain substantially gainful employment prior to August 2001. 

The Board remanded the claim for an addendum opinion in light of the March 2011 examiner's apparent consideration of other physical disabilities in addition to service-connected disabilities in formulating the opinion as to unemployability.  An August 2011 addendum to the social industrial survey reveals that, in the reviewing physician's opinion, the Veteran's cervical spine condition from April 1994 to August 16,2001 caused the following limitations:  the Veteran could only stand one hour at a time; he could only walk with a neck brace for up to 45 minutes and without a brace he could walk 20 minutes; he had severe restrictions with any bending, lifting, or twisting; and the Veteran's elbow injury also restricted physical labor that required repetitive use of the left upper extremity.  In the physician's opinion, these limitations due to service-connected disabilities caused the Veteran to be unemployable in both physical and sedentary work during this time period.  The opinion was that the Veteran was not employable in any type of labor during this time period due to his service-connected disabilities.

The RO referred the case to the Director of the VA Compensation Service (Director) for extraschedular consideration decision in December 2011.  In a January 2012 opinion, the Director noted that, from April 1994 to August 16, 2001, the sole service-connected disability was cervical spondylosis with chronic muscle strain of the left neck, evaluated at 20 percent.  The Director found that physical examinations prior to August 16, 2001 do not support the contention that the Veteran's service-connected cervical spine disability was so exceptional or unusual, as to render the use of the regular rating schedule standards impractical.  The Director found that there are no medical statements or records indicating that the Veteran could not perform in any sort of occupational environment.  The Director also noted that May 18, 2001 was the first time employment functioning was mentioned in terms of the Veteran's neck disability, and this appears to be verbal history from the Veteran, not a professional medical opinion.  The Director noted that the Veteran stopped attending vocational rehabilitation due to headaches, which he claimed were due to the neck, but no link has been provided, and he is not service connected for a headache condition.  The Director acknowledged the recent VA opinion that the Veteran was unemployable due to his cervical spine disability prior to August 2001.  While this opinion was taken into consideration, the Director found that the objective evidence does not support the examiner's finding.  The Director concluded that, while available evidence demonstrates that the Veteran's cervical spine disability would have affected his ability to work prior to August 2001, evidence does not show it would have precluded all types of employment, such as sedentary employment.  

The Board notes that the Director only considered the Veteran's cervical spine disability as service connected during the period in question.  While this was technically true at the time, service connection was subsequently granted for residuals of a left elbow fracture with a 20 percent rating assigned effective December 14, 1993.  The service-connected left elbow disability must also be considered in determining TDIU entitlement, but apparently was not considered by the Director.  The Board also notes that the Director did not explain why the objective evidence does not support the examiner's finding.  In addition, the Director appears to have found that the evidence must show that the Veteran's service-connected disabilities would have precluded all types of employment, such as sedentary employment, in order to warrant TDIU on an extraschedular basis.  Such criteria appear stricter than what is provided in VA regulations.  

The Board finds most persuasive the fact that, as determined by the Veteran's vocational rehabilitation counselors, the Veteran 's service-connected neck disability limits him from doing any overhead or heavy lifting, coupled with the fact that he lacks suitable skills to find employment that is not physically demanding.  Indeed, regarding sedentary employment, it was noted that the Veteran was educationally disadvantaged and restricted as to the types of jobs for which he would qualify.  It was specifically noted that the Veteran "cannot perform any jobs that require excessive physical demands, yet on the other hand, these are the only types of jobs that he's really qualified to do from an educational standpoint."  The VA vocational rehabilitation counselor noted that the Veteran has not overcome the effects of the impairment of his employability, and he does not have suitable job skills to offer the civilian job market, either from training or work history.  

In Moore, 1 Vet. App. at 359, the CAVC discussed the meaning of "substantially gainful employment."  The CAVC noted the following standard announced by the United States Court of Appeals for the Federal Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.

Here, it is uncontested that the Veteran's service-connected disabilities would preclude any form of employment that is more than sedentary in nature.  Moreover, as a result of his inability to complete his education and his limited vocational experience, the Board finds that the types of sedentary occupations available to the Veteran would be quite limited.  The Board emphasizes that the test is not whether the Veteran would have been precluded from all types of employment, such as sedentary employment, but whether such employment was realistically within the physical and mental capabilities of the claimant.  On this question, the evidence in this case is at least in relative equipoise.

An additional factor considered by the Board relates to medication taken by the Veteran to treat his service-connected disabilities.  In a May 2003 RO hearing, the Veteran testified that he took pain medications and muscle relaxers for his service-connected disabilities.  A July 2003 VA examination reveals that he had been taking codeine for pain.  A June 2011 VA social and industrial survey shows that he was taking the muscle relaxant Cyclobenzaprine.  The effect of the Veteran's long-term use of pain medications and muscle relaxers to treat his service-connected disabilities cannot be ignored when considering his overall functional impairment due to service-connected disability.  See Mingo v. Derwinski, 2 Vet. App. 51 (1992) (in adjudicating a TDIU claim, there must be an assessment of the side effects of the medications taken for a service-connected disability).

In sum, given the severity of the orthopedic disabilities affecting neck, cervical spine, and left upper extremity, the Board finds that the evidence for and against whether substantially gainful employment is realistically within the Veteran's 

physical and mental capabilities is in equipoise.  Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities preclude him from performing substantially gainful employment.  38 C.F.R. § 5107(b).  Therefore, TDIU is warranted from December 14, 1993 to August 16, 2001.


ORDER

A TDIU from December 14, 1993 to August 16, 2001 is granted.

[FormerMember]

Rating decisions are a function of the AOJ. As a matter of course, legally speaking, the Court doesn't make rating decisions nor do they award $. They are not a court of equity. They have no authority to do so. They judge the case, up or down, purely based on the evidence of record. Once you file your NOA at the Court, the record is closed.  The Court has the power to reverse, set aside or vacate due to error. All my claims/appeals for the highest ratings (SMC (o), R1 & R2) have always been won at the BVA. VA rarely, if ever, grants these locally. No DRO wants it on their resume. I've had only one R1 win at the regional level (Little Rock) and the matter was unarguable. All the rest were granted by a VLJ and, by operation of law, remanded back to the AOJ for implementation of the Board grant. A VLJ can only grant a higher rating based on a disagreement (read appeal) with an initial rating or request for increase. Even with a grant, it still has to be returned to the VARO and physically accomplished (rated) at the AOJ. 

Unfortunately, you cut off your CAVC decision quote above such that I cannot see the actual reason for the remand. As CAVC decisions are not private, feel free to send me the case number privately to protect your identity if you wish.  

Attempting to look back at the 2009 BVA decision is fruitless. Subsequent adjudications have rectified the problem of entitlement to TDIU so that point is mute. Once the BVA CUE finding granted you the EED of 1993, it subsumed any earlier  VA or BVA conclusions of law-but only on the subject of the effective date of TDIU. You focus your entire discussion on  entitlement to SMC (s) prior to 2018 which postdates the 2009 decision. 

Based on all I read that you have provided, absent a doctor or higher-level clinician contemporaneously stating your need for A&A or conditions supporting a determination of being "housebound" earlier than June 2018, you cannot establish an earlier entitlement to SMC (s). Testimony from a significant other, even predicated on a 13-year relationship with firsthand observation, is insufficient to sustain entitlement. Unless your girlfriend was a psychologist (PsyD) or had acceptable medical credentials (ARNP, MD, RN) demonstrating her bona fides to opine, her probative testimony can only be relegated to what comes to her via her five senses (Layno v. Brown/ Jandreau v Nicholson). Ditto your lay testimony.

Again. I point to the unguided safari analogy.  Unless I misunderstand this, you are asking (or contemplating asking) the VA now, in 2021, to look at the evidence of record from 1993 to the 2018 award (ostensibly lacking any legal pronouncement of an inquiry as to the applicability of SMC) and ask them to retroactively survey it for either CUE or failure to perform a retro- Akles process of reviewing the case for an inferred ancillary entitlement to SMC. The VA benefits from the Presumption of regularity. It is presumed they reviewed the 2018  (and 2020-21)decision for this inferred SMC entitlement test. A decision is not required to explain every nut and bolt looked at. Cogburn v Shinseki (2010) discussed implied/inferred denial by its absence in a decision. Cogburn protects VA's failure to adjudicate entitlement to SMC-at least until 2010- from then on VA has to obey the four Cogburn factors. 

If the 2018 BVA decision above failed to infer (or discuss) retro entitlement to SMC at any rate, the time to disagree was in 2018. Your only venue under a Legacy claim in 2018 meant you had to take it to the CAVC. Perhaps that's what you did but I can't "see" that.  Again, absent a discussion in the BVA decision, you cannot raise it sua sponte above. When you file a NOD, you "vest" the Board with the authority to decide (de novo) your contentions. If you fail to raise certain contentions, the Board often feels the matter is not before it. Where SMC is concerned, it always should be but the Board may, and often does, miss it. SMC is horribly complicated and most ROs, let alone staff attys at the BVA, can't figure it out. That's what the 1989 VJRA was for. It's why I spend so much time on claims and appeals for higher SMCs for my clients.

Getting to the higher rates of SMC are well-discussed in Breniser v. Shinseki. See also §3.350(e)(1)(ii). There are only 4 conditions which lead there and you need two between SMC L and N. The VLJ held you were not entitled to SMC (m) because you do not suffer LOU or blindness. In addition to a&a, you would need a separate, distinct disability independently ratable at 100% schedular to advance from SMC (l) to (m) under §3.350(f)(4) or to SMC (o) under §3.350(e)(1)(ii). Likewise, in addition to SMC (l) for a&a, you would need the LOU of two extremities or blindness to get to SMC (o) with one of them being a&a, and thence upwards automatically to R1. (Breniser/§3.350(h))  If the 2018 claim is moot, I don't see how you can revisit SMC (s) without a prior diagnosis of housebound earlier than the June 2018 c&p. 

But then, I could be missing information here. Best of luck.

[Mr cue]

I will send you the court docket.

My thing is 2001 I was granted tdiu 60 one condition. Bva never inferred smc

2009 I was award extra scheduler tdiu. Bva never inferred smc.

2018 I apply for smc a&a and mental health. Granted smc s 3 month and smc l.

I appeal to court it's remand to address smc r o and effective dated for smc s and r.

now if bva never denied or inferred smc l or s 2009 when they had lay evidence from ex and I was housebound. Pt.

now with the court remand they have to address that time period right.