Better EEDS under 38 CFR 3.156 (c)

[Berta]

I posted this here minutes ago for someone but it deserves it won thread to be easier to find.

CONCLUSION OF LAW "The criteria are met for an earlier effective date of July 2, 1969, for the award of service connection for PTSD and related symptoms, including anxiety and depression. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.156(c) (2005); 3.400 (2016)."

https://www.va.gov/vetapp17/Files8/1745093.txt

 

"Appellant represented by: Robert V. Chisholm, Attorney at Law"

The decision shows how important 38 CFR 3.156(c) can be, and in this case it involved lots of retro cash.

 

 

[Mr cue]

Crazy part my tdiu award said almost the same thing and the part of no Future exam. Also pt 

I Even have comp exam stated no improvement I have Many reports stating my condition would not improve.

I even have 2012 a extra scheduler tdiu rating from 1993-2001 bva decision which address everything. 

But it was never inferred. We didn't have to apply. Va was to maximize our claims. Or inferr it by our record never done

It should have been inferred veterans even when the howell case became law. They never done it

I believe

I apply for smc s under howell and I have had nothing but the run around

I mean I have 4 5 different decision and a cavc remand. And still Not one address it.

I even been to the us court and file it in my brief and reply brief

An they ain't address it they remand it back to bva the bva remand it back ro to address effective dated

I am waiting on the ssoc from the ro now. Which mean they still ain't grant it.

I want to see if they even address it. On the ssoc

My belief is it's going back to court.

I don't see the bva remand it back to ro and than get it back and they grant it.

It look like they got me on the hamster wheel smh.

Crazy part the howell case is law. 

When the bva  granted 3 month of smc s. They never even discuss housebound by fact or howell I posted the bva decision on the site

They granted the 3 month based on Tdiu 60/60. Like u

I state all this to show you the fight and games they could try to play.

 

 

 

 

 

 

 

[Buck52]

Roger that Mr CUE  don't feel to bad  my C-file is so mixed up   It takes me hours to find anything in it  due to duplicates and shool papers where I went to school on the GI-BIL BACK IN 74/78.. ECT,,,ECT,,,

i AM STILL GATHER UP MY EVIDENCE,  ITS BASICLY THERE EVIDENCE i AM USEING IT AGAINT THEM  FOR NOT INFERRING THE SMC S H/B/ WHEN THEY GRANTED ME THE TDIU P&T. ON Dec 10th 2002

 

Although on Oct 2015 I had a grant for 70% PTSD   the rater did it right and infer the SMC S  H.B. back then  I had IU  =100% AND THEN A SEPERATE CLAIM RATED ABOVE 60%  THAT MADE ME MEET THE SMC S H.B. Criteria

I just want it back to Dec 10th 2002 WHEN THEY GRANTED ME THE TDIU   /OR AT LEST BACK TO 2006 THE DATE Howell vs Nicholson. court ruled for the veteran that could not leave home for work  so that made him house bound  by the fact he was not able to work due to his service connected disability. one single disability that render him unemployable    -hench the TDIU P&T   &LEAVING HOME TO GO TO A MEDICAL APPOINMENT WAS NULLIFIED(Veteran can leave home for medical appointments and they can't use that against him./her.   that's what Mr Howell raised in court.

[Buck52]

SOME REGULATIONS FROM M21-1part IV subIV 112.H.10F

In relations to Houseboud in fact  for REQUESTING the statuoury rule to SMC S H.B. WHEN GRANTED  IU with a single disability rated 60% and a lower disability at 40%  combied to 60%   extra scheduler  38CFR 4 16 (a)

A total rating based on IU when awarded for multiple disorders treated as one disability under the five options listed in 38 CFR 4.16(a) does not satisfy the regulatory requirement under 38 CFR 3.350(i) of, “a single SC disability rated as 100 percent.”

However Keep reading straight from the horses mouth!!!

The Court of Appeals for Veterans Claims (CAVC) noted in Bradley v. Peake, 22 Vet.App. 280 (2008) that restrictive language precluding an IU evaluation from satisfying the “total” requirement of 38 U.S.C. 1114(s) was dropped from the implementing regulation, 38 CFR 3.350(i), in 1995 following VAOPGCPREC 2-1994 that held that 38 U.S.C. 1114 did not authorize such a restriction.

CAVC only clarified in the Bradley decision that there was no restriction under 38 U.S.C. 1114(s) preventing the consideration of a “total” evaluation based on an SC disability used for IU. 

If IU was granted based on a single disability and the Veteran has additional disabilities combining to 60 percent, SMC (s) can be granted prior to November 26, 2008, the date of the Bradley holding. 

Follow the procedures at M21-1, Part III, Subpart iv, 5.C.8.n to determine the proper effective date for entitlement to SMC based on the Bradley holding.

Example – IU award based on a single disability:  A Veteran is in receipt of IU based solely on depression evaluated as 70-percent disabling.  Subsequently SC is granted for coronary artery disease (CAD) and a 60-percent evaluation is assigned.  SMC (s) at the statutory housebound rate is awarded.

 

Analysis:  The Veteran in this instance would be entitled to the statutory SMC housebound rate. Under Bradley v. Peake, 22 Vet.App. 280 (2008), awarding IU based on the single disability of depression satisfies the requirement for a single disability evaluated as totally disabling for purposes of SMC (s) entitlement.  CAD is an additional disability evaluated as at least 60-percent disabling and is separate and distinct from the SC depression and associated IU.

Also this

A housebound in fact determination requires a Veteran’s inability to leave his /her place of residence and immediate premises in order to earn any income.  However, it does not require a total inability to leave the place of residence and immediate premises for all circumstances.  Leaving home for medical purposes cannot, by itself, serve as the basis for finding that a Veteran is not substantially confined for purposes of SMC housebound benefits.  The limitations must be the result of the Veteran’s SC disabilities.   Non-medical indicators of housebound status may include but are not limited to inability to walk substantial distances leaving the home with assistance only occasionally for appointments grocery shopping, or church, or inability to mow one’s lawn.

 

[Mr cue]

Buck u have done your homework like I did.

It all point to a veteran should be granted smc s when they get a tdiu award

But the problem is get the va bva to follow the law.

If u look at my bva decision in my post do u see the error which is the decision on smc s and l

U will see there games they play  in real life.

U can even see the attitude of the rater in the decision.

When he State that smc l is catch all benefits.

We're is that stated in the reg smh

 

[Buck52]

I wish I knew what claim form to file  and ask for the Audit ?

and just have them to check and make sure I am eligable for the SMC S H.B. BACK WHEN I GOT  THE TDIU P&T? IN 2002?  OR IF I WAS ELIGIABLE ON THE DATE Howell vs Nicholson  rule? OR MAYBE I FALL UNDER THE Under Bradley v. Peake,(2008)    and just have them to figure it all out.

I don't want to rain on anyones parade  or open up a can of worms  and stir up the VA Bees Nest   if I got it coming to me then let them figure it all out   I am not sure why something like this would have to go through the BVA  when its in black &white to make the decison  I am either eligable or I am not?

Edited May 23, 2021 by Buck52

[Mr cue]

Believe me I understand like I said I wait until I was 25 years protected.

Since I file the smc Claim

 I have three different request to lower my rating and each one they are told my rating is protect.

It's a shame that veterans have to be shook of applying for benfits owe to them.

Don't no how long u had your rating it is something to think about