Ok here is the whole decision on smc s and l

[Mr cue]

I have posted the cavc set a side order.

This the bva decision after the remand.

Now the bva has only address the period from when I apply for smc.

I got denied housebound by fact for the same reason as Howell v Nicholson.

Because I was able to travel to medical appointments. Smh 

Guess the bva judge never read Howell v Nicholson.

Not one piece of my evidence before 2018 was even address in this bva decision.

Then the crazy part in the history they just run my disability together.

They never address that the buffalo ny regional never cretifed my appeal in 1993.

The court allow the the va to stage rate me from 1993-2001 20% for neck. 20%elbow/hand.

I was give extra schedulers tdiu from 1993-2001.

Because I was granted tdiu 2001 based on the neck 60%pt. And have never work since service.

all done to not address my smc in the proper light.

Well the last thing they remove this issue from the cavc remand docket and legacy appeal system.

An put me in the new ama system I never opt in.

Now I get a decision on my cavc remand tell me I can request a supplement review.

And I have a new 2021 docket number for a appeal that start 2018.

Well I will win the smc s they just kill there self by denied it because I can go to doctor appointments.

I will win the effective dates once the court address there errors.

Guys confine to one home is not been able to leave your home to make a income.

That the law under Howell v Nicholson.

 

 

 

 

[Buck52]

Mr CUE

if your bases this on when you was awaded the TDIU  you will be denied  until you have another seperate and distink disability rated at 60% or more    no SMC for you.

I think you have these people AND JUDGES confused or they are just  Ignoring your request for the 2001 TDIU WITH SMC  BASED ON HOUSE BOUND IN FACT   SIGHTING  ''HOWELL vs Nickelson 

you quoted ''

'' I was granted tdiu 2001 based on the neck 60%pt. And have never work since service.

all done to not address my smc in the proper light''

This 60% is in part of your TDIU Disability

   you need a seperate disability not connected to your TDIU. = RATED AT LEAST 60% OR HIGHER.

or unless they go back to May 9th 2018  when you were awarded a seperate disability for 100%  if this is tide to your TDIU  NO CIGAR ON THE SMC.

and it has to been from your military service. the TDIU is what hurt you getting the SMC    (JMO)

I Have the SMC AND ALSO HAVE THE TDIU P&T  BUT THE SMC AWARD WAS FOR A TOTALLY DIFFERENT DISABILITY  NOT TIDE TO MY TDIU P&T 

Edited December 1, 2021 by Buck52

[Mr cue]

Buck this is where I feel veterans get it wrong there are two ways to smc s.

One is tdiu 60% and another 60%

Then there is housebound by fact which a veteran gets if his tdiu is based on one condition.

60%pt tdiu 2001.

See if you look at the decision it is all about my tdiu is made up of all my condition. Which is not legal.

To get tdiu based on two or more condition the combine rating must be 70% by cfr.

Then look at why I was denied housebound by fact for.

Because I could go to doctor appointment.

 

 

I post this because I feel veterans who are tdiu one condition should be getting smc s.

I will post the court ruling on what confine to one home is.

But ruling is not been able to leave one home to make a income.

Howell v Nicholson has nothing to do with tdiu 60 60

 

Here is from the va official site.

What the case is about:

 

The Court held that leaving one’s house for medical purposes cannot, by itself, serve as the basis for finding that one is not “substantially confined” for purposes of special monthly compensation (SMC) housebound benefits under 38 U.S.C. § 1114(s). 

 

Citing Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992) and Leshore v. Brown, 8 Vet.App. 406, 409 (1995), the Court also held that the medical opinions of record did not constitute competent medical evidence as the opinions were solely based upon lay history and/or “unenhanced” by additional medical comment. 

 

Impact on VBA:

 

M21-1MR, Part IV, Subpart ii, Chapter 2, Section H, Para. 46(b) should be amended to incorporate the Court’s holding that leaving one’s house for medical purposes does not preclude entitlement to SMC housebound benefits. No other Manual or regulatory revision is warranted. 

 

Summary of the facts and Court’s reasons:

 

Service connection has been established for paranoid schizophrenia. A 100 percent evaluation has been in effect since 1982. 

 

The veteran submitted an inquiry to the RO in January 2000 as to whether he was eligible for A&A benefits. He later provided a written note from Dr. Jose H. Duque, who stated that the veteran was “not able to take care of himself without help because [of] his mental and physical disability.” When the veteran alleged that he was unable to attend a scheduled VA examination, the RO construed his statement as raising a claim for SMC benefits based on housebound status. 

 

A VA examination was conducted in June 2002. The claims file was not available for review. The veteran’s wife conveyed to the examiner that she helped her husband with bathing, eating, and dressing. Diagnoses of lumbosacral disc disease with left-side sciatica, emotional problems, and hypertension were rendered. The VA physician stated: “As per the wife and also as per the veteran because of a combination of his emotional problems and probable spine disease and loss of balance, veteran is unable to take care of his activities of daily living.” 

 

The Board of Veterans’ Appeals (BVA), in February 2004, concluded that the veteran’s service-connected mental disorder, alone, did not render him housebound or in need of the aid and attendance (A&A) of another person. Concerning the housebound status, BVA, finding that his psychiatric disability does not interfere with the ability to leave home, noted that the veteran is able to attend to regular medical appointments and VA examinations “when motivated.” Concerning the veteran’s need for A&A, BVA, citing the opinions of both Dr. Dugue and the VA examiner, found that “it was only from a combination of the veteran’s service-connected psychiatric, and non-service connected physical, disabilities, that the veteran required the assistance of another person in the performance of his daily activities,” making the veteran ineligible for SMC-AA benefits.   

 

With respect to the need for A&A, the Court found the opinions of Dr. Dugue and the VA examiner to lack the proper foundation to be afforded any weight. The VA examiner provided no medical assessment of the veteran’s needs or specific bases for those needs and relied solely upon the statements of the veteran and his wife. Although the veteran and his wife are competent to state their activities and opine as to their needs, they are not qualified to provide the requisite medical nexus between the veteran’s disabilities and perceived needs. See Espiritu. These lay statements, unenhanced by additional medical comment, do not constitute competent medical evidence. See Leshore. 

 

Dr. Duque’s opinion was noted to consist of nothing more than a handwritten note on a blank form used for prescriptions. The brief statement was unenhanced by any medical comment and could not be considered competent medical evidence. Accordingly, BVA erred in relying on these medical opinions to conclude that the veteran did not need A&A based solely on his service-connected disability. On remand, an examination was to be provided that will facilitate a decision on the veteran’s claim. 

 

Regarding the housebound claim, the Court indicated that the term “substantially confined” is not defined by statute or regulation; thus, the Court must determine the meaning of the term and the Board’s obligation. Referring to legislative history, the Court noted that Congressional intent in authorizing SMC based on housebound status was to “provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all.” Leaving one’s house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined for purposes of SMC-HB benefits. Thus, BVA’s interpretation of section 1114(s) to preclude the grant of SMC housebound benefits on the basis of appellant leaving the house to attend medical examinations was erroneous. 

 

BVA also erred by failing to discuss the separate effects of the service-connected and non-service-connected disabilities and whether, standing alone, the service-connected disabilities would have warranted a grant of SMC housebound or A&A benefits. Citing Mittleider v. West, 11 Vet.App. 181, 182 (1998), the Court instructed that BVA, in cases where service-connected and non-service-connected disabilities are present, is to attempt to discern the effects of each disability. If unable to evaluate separately the effects of each disability, application of the benefit-of-the-doubt rule requires that those inseparable effects be attributed to the service-connected disability.

 

The BVA decision was set aside and remanded for readjduciation consistent with the Court’s opinion. 

 

References:

 

CAVC case number: No. 04-0624

 

[Buck52]

Well I recommend you get an ACCREDITH  CERTIFIED TO THE VA COURTS VA Claims Agent with at least 15 or more years experince. or an attorney with the same resume.  to help you win this.

i WISH YOU THE BEST WITH IT AND HOPE YOU GET THIS.

[Mr cue]

Buck I have already won the remand at the court before and the set a side order. 2021 pro se.

This is the remand bva decision.

I will win easy at the court might even get the court to granted it out right.

Due to the court percendent

Howell v Nicholson

First guys 

 this is why the va try to say that you tdiu is based off all your condition.

To get Housebound by fact a veteran must have tdiu based off one condition.

Now this is how you fight it.  All condition stuff.

To be granted tdiu based on different condition they must be combine rating 70%

To be granted tdiu on one condition that condition has to be rated 60%

THIS IS THE LAW.

I fought this back in 2001 at the dro hearing which granted my tdiu.

 

Even in the bva decision it stated even if his tdiu was based only on his neck.

He doesn't meet the 60/60 thing.

But what about housebound by fact.

Howell v Nicholson

Then they turn around in the same statement he is not housebound by fact because he can travel to medical appointments.

Which one is it. See this is how the va send a veteran down a rabbit hole.

I apply for smc under Howell v Nicholson. 2018 lol.

I been go back and forth with this for 3 years going on 4.

And Howell v Nicholson is the va manual and a court percendent

And I just got denied for the reason the va manual tell them not to.

And the court percendent. Smh

Well i will be starting the appeal to court this Friday.

I was try to wait for the ruling on my petition for extraordinary relief.

But I got this feeling the court will just dismiss it because the board just stated they made decisions.

Ok but here the crazy part the only issues still under the cavc remand docket number. Is smc o and r.

I have got two ssoc one may and now one Nov.

They still will not return it to the judge. 

So now I will have 3 different appeal decision made by two different bva judges to appeal back to the court.

and I had two different bva judges remand my appeal during this process.

I had 4 different bva judges rule in my cavc remand due to there errors.

Guys the only way you have that many judges on a cavc remand is if they retire.

I don't think 3 different judges retire in 6 months. Lol.

This whole cavc remand to the board has been a joke.

I am now get my brief to the court prepared 

 

O and the court has a new rule 33 telephone conference for pro se veterans.

So I cross my fingers and hope this is complete at the court in 5 6 months smh.

I also have advance at the court so the process to file things is speed up. So we will see

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Buck52]

OKAY I SEE,

Please post the decision if they give you the smc   based on the Howell vs Nickloson  .

I might can go back to 2002 and get the SMC UP TO 2015 WHEN I GOT IT FOR ANOTHER DISABILTY SEPERATE FROM MY TDIU  P&T   The SMC WAS NOT AWARDED TO ME WHEN I GOT  THEY TDIU P&T  BACK IN Dec 2002.  hey thats my 20 year protection  next month  yahooooo

SO MAYBE JUST MAYBE IF YOU WIN THIS I MAY FILE A CLAIM FOR SMC S  ask that it go back to 2002  to the year I did get it in 2015.

 

[Mr cue]

Buck that is what I did Wait to I was protected before I apply for smc back to 2001.

Because I understood this was going to be a fight and I didn't want to be fight for my rating at the same time.

Yes I will post the court decision again because I have a straight to the point thing going at the court this time.

Not going down all these rabbit holes this time with the va

I did it last time the court I believe though the board was going to get it right when they put in the set aside order. The same thing they did in Howell v Nicholson.

But the board change the court set a side order.

To granted the same effective dates in the first instance.

So now I fight the same fight back to the court.

I can't make this up.

I have done this va thing for over 20 years.

I have never seen the board change a cavc remand order.

Here is the chairman response to my petition he is not going to be caught lien to the court.

 

1. I am Deputy Vice Chairman of the Board of Veterans’ Appeals (Board), in 
the Department of Veterans Affairs (VA) and, as such, I am among those 
responsible for the control and supervision of the administrative appeals 
operations at the Board. The information contained in this declaration is 
based on a review of the information available in the Veterans Appeals 
Control and Locator System (VACOLS) (VA’s computerized tracking 
system for legacy appeals), Caseflow (VA’s computerized tracking system 
for modernized decision reviews), and the appellant’s claims file, accessible 
to VA staff through the Veterans Benefits Management System (VBMS).

3. On January 29, 2021, the Court issued a memorandum decision under 
docket number 20-4110 which reversed a January 30, 2020 Board decision 
to the extent the Board found Petitioner’s October 2018 [sic] notice of 
disagreement (NOD) did not encompass the portion of a July 5, 2018 rating 
decision granting a 70 percent evaluation, but no higher, for a psychiatric 
disorder. The Court remanded the issue of entitlement to an initial 
evaluation in excess of 70 percent for a psychiatric disorder for further

adjudication. The Court also set aside and remanded the portion of the 
Board decision that denied entitlement to higher levels of, and earlier 
effective dates for, special monthly compensation (SMC). Judgment was 
issued on February 22, 2021, and an expedited Mandate was issued on 
February 26, 2021. See Exhibit A.

Ok here is when I can't believe that are really tell the court that the board found that it need to change the remand order from set a side.

to granted in the first instance.

 

A May 3, 2021 Board decision remanded the issues of entitlement to an 
earlier effective date for SMC housebound, entitlement to an earlier 
effective date for SMC based on the need for aid and attendance, and a 
higher SMC rate.

The Board found that per the Court’s memorandum 
decision, the agency of original jurisdiction (AOJ) should assign effective 
dates in the first instance, and found a higher SMC rate was intertwined 
with the remanded effective dates for the assigned SMC ratings. The Board 
also remanded the issue of an initial rating in excess of 70 percent for 
adjustment disorder with depressed mood for the AOJ to issue a statement 
of the case (SOC), as the Court had found a timely NOD had been filed for 
this issue. See Exhibit F.

Seen when can the board change a cavc remand. Smh.

 

 A June 29, 2021 Board decision remanded entitlement to a higher level of 
SMC for further development. In the introduction, the Board noted the 
prior May 2021 remand for the AOJ to assign the effective dates for the 
grants of SMC based on housebound status and the need for aid attendance 
in the first instance, pursuant to the Court’s memorandum decision. The 
Board stated the AOJ had assigned effective dates per a May 2021 rating 
decision, and that as the effective dates were downstream issues, Petitioner 
must separately appeal that decision. Finally, the Board stated Petitioner’s 
appeal as to an increased initial rating for adjustment disorder with 
depressed mood was considered a separate appeal stream following the 
issuance of the SOC, but was not yet before the Board and would be subject 
to a later Board decision. 

 

 

Now I think everbody can see were this all when wrong.

A judge really call a cavc remand a downstream appeal issue.

So now I wait for the same judge at the cavc to rule on my petition

And if it was ok to change there court order. My belief is they any even goin to address it.

But cause the board has now stated they made decisions on them.

I post all this to maybe help a veteran understand the va games.

And be able to see them.

The fight continues  but I feel they are boxing there self in a corner.