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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
Cir. 2009). The Board found that Appellant “alleges that he
requires regular air and attendance and is entitled to SMC at the k, l, m, and s
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
granted SMC benefits is warranted because the RO did not initially consider the
downstream issue of an effective date, and, consequently, no NOD was filed to
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.
2012); Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997).
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,
could not make a decision that was contrary to the Board decision. As such, a
Board decision that assigns an effective date in the first instance could not be
changed by the RO. See Brown v. West, 203 F.3d 1378, 1381
("[I]t is improper for a lower tribunal . . . to review the decision of a
higher tribunal."). The Board’s actions effectively deprive Appellant of the
opportunity to have the effective date adjudicated by the RO in the first instance,
to make arguments in an NOD that could result in a different outcome during the
agency adjudication, and the opportunity to have the Board address the issue of
the effective date after this full development in a potential appeal. Thus, the
Board's assignment of effective dates here should be vacated and the matters of
an appropriate effective date should be remanded by the Board so that the RO
may review the issue in the first instance and allow Appellant the opportunity to
make arguments about the appropriate effective dates for his awards of SMC-S
and SMC-L before the agency.
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
part of the July 2018 rating decision that awarded service connection for a
psychiatric disorder with a 70% rating effective May 9, 2018. 38 U.S.C.
§ 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). The Board found
that Appellant “had one year to appeal any aspect of that award (effective date or
evaluation, but he failed to do so.” [R. at 5]. However, the Board did not address
the substance of Appellant’s August 2018 NOD that identified areas ofdisagreement as “A&A,” “my elbow & hand upper extremities,” “SMC S and all
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
in.” Id. Thus, remand is warranted for the Board to provide an adequate
statement of reasons or bases that reconciles its finding that the psychiatric
disorder claim was not appealed with the substance of the August 2018 NOD.2
To the extent Appellant appears to make arguments about a Veteran
Readiness and Employment (VR&E) claim, App. Brf. at 10-11, that claim was not
on appeal to the Board here. And, to the extent Appellant raises concerns that
the Board changed a protected rating for TDIU, App. Brf. at 1-6; 8-10; 14, there is
no indication Appellant’s TDIU award and compensation have been altered.
Appellant has been in receipt of a TDIU since December 1993 and Appellant has
been eligible for Chapter 25 benefits since December 1993 with a permanent
total rating. See, e.g., [R. at 389]. The Board’s shifting of the basis of
Appellant’s TDIU award was permissible to establish eligibility for SMC-S, in that
sense benefitted Appellant, and did not impact that actual TDIU rating. See [R.
at 9] (citing Buie, 24 Vet.App. at 250).
The Secretary submits that the above bases for remand, given the
expedited nature of his appeal and the discernable arguments raised, appear to
encompass or address the numerous arguments raised in Appellant’s informal brief.
But the Secretary does not concede any material issue that the Court may
deem Appellant adequately raised and properly preserved, but which the
Secretary did not address, and requests the opportunity to address the same if
the Court deems it necessary.
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.
They didn't address loss of use denial guess the judge will address
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.
It going to stress me out waiting for the judge to rule lol
By Mr cue
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.
Only thing I am think about letting it go to the judge anyway they don't address my loss of use or the denial
Might let it go no sure yet
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.
I put this showing the board is aware that I never have or will leave my house for an income
Which was congress intent by howell v nicholson
Now we sit an wait for them to lose there mind.
I don't think they want the court to rule on this so I think they will be remanding this issue quick just like in the howell cases.
I am pointing this out because I don't see tdiu veterans get smc s with there decision. Under been permanently housebound. The 2 way to smc s
And congress and court has stated housebound.
Is never been able to leave home for income. Not that u can't move.
Every bva decision I have look at on smc s never address this it always tdiu 60 60. So I press the issue.
they have 20 days not the 60 days to put it in there brief and I have 7 to reply. Then off to the judge.
Case was expidate at cavc due to my need of in home care.
Board expidate the case also for this.
But didn't address my need of in home care in the bva decision I can't make this up lol
I have the doctor note stating without in home care I will need nursing home services.
From va hospital witch pay for the in home care.
Would u believe I am been told the board doesn't have jurdistion on smc o r1 r2 and to reapply lol on the decision
Which if I had reapply I would of lose my cavc appeal rights on this issue. They try to put me on the hampster wheel.smh
I point all this out to let veteran understand that they need to educate there self on cfr which is the law.
And look at cases with your condition and the laws use to address them at bva and cavc
Ok I am done i be needing to vent lol
rebabevets posted a question in VA Disability Compensation Benefits Claims Research Forum,I already get compensation for bladder cancer for Camp Lejeune Water issue, now that it is added to Agent Orange does it mean that the VA should pay me the difference between Camp Lejeune and 1992 when I retired from the Marine Corps or do I have to re-apply for it for Agent Orange, or will the VA look at at current cases already receiving bladder cancer compensation. I’m considered 100% Disabled Permanently
Ddsr posted a question in VA Disability Compensation Benefits Claims Research Forum,The 5, 10, 20 year rules...
Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.
Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.
Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.
If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"
At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.
NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.
Example for 2020 using the same disability rating
1998 - Initially Service Connected @ 10%
RESULT: Service Connection Protected in 2008
RESULT: 10% Protected from reduction in 2018 (20 years)
2020 - Service Connection Increased @ 30%
RESULT: 30% is Protected from reduction in 2040 (20 years)
broncovet posted an answer to a question,While the BVA has some discretion here, often they "chop up claims". For example, BVA will order SERVICE CONNECTION, and leave it up to the VARO the disability percent and effective date.
I hate that its that way. The board should "render a decision", to include service connection, disability percentage AND effective date, so we dont have to appeal "each" of those issues over then next 15 years on a hamster wheel.
Ztmiller8 posted a question in Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC,Finally heard back that I received my 100% Overall rating and a 100% PTSD rating Following my long appeal process!
My question is this, given the fact that my appeal was on the advanced docket and is an “Expedited” appeal, what happens now and how long(ish) is the process from here on out with retro and so forth? I’ve read a million things but nothing with an expedited appeal status.
Anyone deal with this situation before? My jump is from 50 to 100 over the course of 2 years if that helps some. I only am asking because as happy as I am, I would be much happier to pay some of these bills off!
Joey Ross posted an answer to a question,I told reviewer that I had a bad C&P, and that all I wanted was a fair shake, and she even said, that was what she was all ready viewed for herself. The first C&P don't even reflect my Treatment in the VA PTSD clinic. In my new C&P I was only asked about symptoms, seeing shit, rituals, nightmares, paying bills and about childhood, but didn't ask about details of it. Just about twenty question, and nothing about stressor,
Picked ByJoey Ross,