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Call from the va lawyer yesterday


Question

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 

 

 

 

 

 

 

 

 

 

 

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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.
      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 
      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.
      CONCLUSION
    • 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
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       
    • By Mr cue
      Ok my ? If you are award tdiu 60 one condition.
      Should you get smc s under howell v nicholson.
      You are not able to leave your home for a income.
      Am I reading this wrong.
       
      Cause I have been this tdiu 25 yrs I apply for smc an bva will not address this they keep make decisions based on tdiu 60 plus 60 even change a 25 yrs protect rating to granted two months smc s lol an told it's irrelevant that I been 25 yr tdiu for smc purposes
       
      Even stated my tdiu is not base on one condition.
      You can't get tdiu 60 unless it bases on one condition smh the game's
      Oh an last thing I got the rba there are over 7 request about try to reduce my rating. During this smc process.
      That why I wait till I was 25 yrs protect before I made the claim lol  they can reduce anything.
      That why there try to change my tdiu to the other condition. It's not legal tho it will be vacated
       
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    • 5,10, 20 Rule
      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)
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