Ok here is my first draft of the summary of issues.
I feel like I miss something. But This should at least have something that the va lawyer will have to answer.
After the telephone conference
I just have to add the rba pages once the record is serve for this appeal to the court smh
These are the issues that I would like addressed during my telephone conference
First the court set aside the effective date and Remand them to the board January 30 2021 rba
The board violated the court order and remanded them to the regional office to be granted in the first instance
This is a major error and not legal
An must be addressed.
The lower court can’t change a higher court order
The regional office made me do a new NOD to continue my appeal back to the board
The regional office used the new nod to remove me from legacy appeal and the court remand docket.
I never checked the box to remove my appeal from legacy appeal on there nod that was mail to me rba
So how was this remove from legacy appeal and the cavc remand docket?
The regional office has now turned my court remand in to a new 2021 appeal processed in the new appeal modernization system.
I ask for all my issues to be merge back with the cavc remand docket rba
Before any of this was done.
Even wrote on the nod this is a cavc remand rba
Never done now my smc benfit is been treated as new 2021 appeals
this was all done to not address my effective dates for SMC S.
Under Howell v Nicholson percendent
Cavc remand are to be track in the vacol system. So how was my cavc remand treated this way it not legal.
I ask that my whole case be addressed not just there errors of handling a cavc remand.
1. I have been ask for smc s housebound by fact to be addressed in my case for 4 years.
Under Howell v Nicholson cavc percendent
No one will address it or give me a proper decision or reason and base
I have been confined to my home since 1993.
The court has ruled that been confined to one home is not been able to leave to make a income.
Howell v Nicholson percendent
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).
Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra. The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the claimant is restricted to his house except for medical treatment purposes. The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended 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. Mr. Howell does not contest this interpretation.
Well I was denied because of I could travel to medical appointments
2001 I was granted tdiu pt One condition. 60% under rating code 5293.
The board has used the false statement that my tdiu is based on all my condition to not address my smc benfits.
To get tdiu based on more than one condition the combine rating must be 70%.
So how is it possible that my pt tdiu 60% rating 2001 included other conditions?
The law stated to not combine disabled if there is a chance at smc benfits. Va manual and cfr
Next I was told it is irreverent that I am 25 years tdiu. Rba
If I am tdiu for 25 years
I must have never been able to leave my home to make a income because I couldn’t work.
The va has my social security record which show I don’t Even have any work credits for Medicare or social security
Because I have never work since injury in service.
the board using it own interpretation of rating code 5293.
By stating this rating code included system of my elbow/hand and neck.
To not address or deny smc benfits
This is not legal
No where does rating code 5293 state this.
The statement on the 2001 dro decision is not legal it sound like they were making a deal with me for my rating.
To stop from inferring smc s back than.
The board is aware that I have been permanent And total since 1993. And have not worked since injury in service.
The extra schedulers tdiu pt rating decision from 2012 1993-2001 address this. Rba
The dro decision tdiu pt 60% 2001 address this rba
1114; 38 C.F.R. § 3.352(a)(2019); SMC benefits are to be accorded when a veteran becomes eligible without need for a separate claim; Bradley v. Peake, 22 Vet.App. 280, 294 (2008) (citing Akles v. Derwinski, 1 Vet.App. 118, 121 (1991)); Secretary’s duty to maximize benefits; Bradley, 22 Vet.App. at 294; see also AB v. Brown, 6 Vet.App. 35, 38 (1992);
the veterans affairs never address there error of never cretifed my appeal to the board 1993.
And how it remaining pending in appeal status for 8 years. 1993-2001
And never address that I was granted extra schedulers tdiu pt rating from 1993+2001
And how it effects my effective dates for smc benfits.
I was never give a reason and base that address this.
Or why I wasn’t granted or inferred smc s housebound by fact 1993.
Or 2001 or 2012 when the veteran affairs had all the evidence.
That I was pt and housebound. I was never given a reason and base
2. June 29 2021 the bva judge remand loss of use under smc benfits again after a cavc remand
This time the judge stated my condition has improved and that he is not accepting the specialized loss of use exam order.Rba
Because the examiner didn’t make a determination that I had loss of use.
This is not legal and was done to once again not address my smc benfits and to put a unfavorable medical opinion in my record after a cavc remand this is not legal.
The law the va is volating in my case.
Responsibility for Determining LOU The responsibility for determining whether there is loss of use (LOU) of an extremity
• rests with the rating activity, and
• cannot be delegated to the examining physician.
c. Information to Request From an Examiner to Determine LOU When requesting an examination to determine LOU of an extremity, ask the examiner to furnish a
• detailed objective description of remaining function
• quantitative assessment of strength for each extremity involved, and
• description of any pain that affects use.
Do not request that the examiner
• determine LOU, or
• express an opinion as to whether there is, or is not, LOU of an extremity or extremities.
Note: If LOU cannot be determined upon review of an examination report, request an appropriate specialized examination.
References: For more information on
• considering functional loss due to pain in claims for SMC, see Tucker v. West, 11 Vet.App 369, 374 (1998), and
• requesting a specialist examination, see M21-1, Part III, Subpart iv, 3.A.6.
d. Determining the Extent of Examinations in Claims Involving SMC Under 38 U.S.C. 1114(l) Through (n) Exercise considerable care when requesting examinations in connection with claims involving SMC under 38 U.S.C. 1114(1) through (n).
But the board rejected my 25 year record and the specialized comp exam and use a statement that my condition has improved. To shop for an unfavorable medical opinion after a cavc remand.
This is a cavc remand. The board isnt to be shop for a unfavorable medical opinion. By law
So the judge remand was not legal the examiner isn’t to make the determination the rating activity is.
I have a 25 year record of loss of use and over 20 comp exam and a extra schedulers tdiu bva decision and dro tdiu decision which all address my history of loss of use.
I even had 6 comp exam and a specialized loss of use exam. Since applying 2018
I receive in home care because of my loss of use.
I have ch 31 independent living records that address my loss of use.
All this evidence is part of my record.
But the board will not address any evidence or give a decision or a reason and base.
They have never inferred it or address it after the many exams and even after a remand.
So I guess it remaining pending in appeal status.
This must be addressed.
Smc benfits are granted by the record and effective by the record and inferred by the record
Why is my smc benfits appeal not been treated this way.
3. Exam and when can a veteran can say he has enough evidence and ask for a decision based on his record.
Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (Court noted that it would not be permissible for VA to undertake further development if purpose was to obtain evidence against appellant’s case)
Might also look at:
Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001), (in which the court stated that it would be improper for the Veterans Court to remand a case to the Board to give the DVA another opportunity to develop evidence needed to satisfy an evidentiary burden it had failed to satisfy the first time, i.e., to “attempt to introduce new evidence sufficient to make up the shortfall” in the agency’s proof. Id. At 1322.
My case is a cavc remand why is the va still trying to order exam and medical opinion After the court remand .
The June 29 judge remand is not legal on my loss of use under smc benfits
4. Why is the va treating my smc benfits appeal as a increase rating claim and treating each smc benfit as a claim. Even after I withdraw the increase rating 2018 because of there errors
My smc benfits claim and appeal now has over 5 bva judge that have rule on it. Each smc is been treated as a claim.
I don’tthink that many judges retired for this to be possible in one year for this to be possible
Some smc have been processed in legacy and some process in the new appeal system.
No one will address this not legal smc benfits is it owe thing and has it own ruled on how to handle them and process
No one will address this.
Smc is to be inferred by the record and effective and granted by the record.
I refuse anymore exams when my case was remand by the court and ask for a decision based on my record and effective by my record.
The bva judge address this and still order exams and even stated that my condition improved June 29 2021 remand To be able to order more exams after a cavc remand
The inspector general has issue a report on the va about the veterans affairs ordering unnecessary comp exams.
5. If the board has been aware since 1993 that I have never been able to leave my home to make a income.
And I was granted extra schedulers tdiu pt rating because I have never work since service.
Why isn’t my effective dates for smc s housebound by fact not 1993 date of service. By law.
Court need to address this or have va give a reason and base
If the dro granted tdiu pt 60% one condition. And address my need of help of other.
With the lay statement from my ex about my need of help and the extra schedulers tdiu pt rating decision also address it
Why isnt effective date for my smc l go back to 2001 or 1993 when this decision was made.
the board was aware I need help other and never inferred smc benfits. 2001 and 2012
Loss of use three extremities for smc benfits
The extra schedulers tidu decision and the dro tdiu decision address my loss of use. Elbow/hand and upper extremity even try to include it with rating code 5293
Smc benfits for loss of use was never inferred 1993-2001-2012-even now.
And I still can’t get them address even after I apply for them or give a reason and base
Even after the cavc remand it.
6. The veteran affairs has been aware not to try and include my elbow/hand and to address all this in my case since 1997. This must be addressed and I should be given a reason and base.
When I was stage rated 20% under rating code 5293 1993-2001. 2012 extra schedulers tdiu rating decision.rba
There is no reason and base for them to be try to stated my rating code included anything other than my neck.
Decision Assessment Document
VAOPGCPREC 36-97, Dec 12, 1997, Applicability of 38 CFR §§ 4.40, 4.45, and 3.321(b)(1) in Rating Disability Under Diagnostic Code 5293 (Intervertebral Disc Syndrome)
Office of General Counsel Precedent Opinion
What the case is about
Whether Diagnostic Code (DC) 5293, intervertebral disc syndrome (IDS), is based upon loss of range of motion, and therefore whether 38 C.F.R. §§ 4.40 and 4.45 are applicable in determining the extent of a veteran’s disability due to IDS.
Whether 38 C.F.R. §§ 4.40 and 4.45 must be considered where a veteran receives less than the maximum schedular rating under DC 5293, but that rating corresponds to the maximum schedular rating under another diagnostic code pertaining to limitation of motion.
Whether 38 C.F.R. § 3.321(b) must be considered when a veteran receives less than the maximum rating under DC 5293, irrespective of whether 38 C.F.R. §§ 4.40 and 4.45 must be applied in such a case.
Impact on VBA
Diagnostic Code (DC) 5293, intervertebral disc syndrome (IDS), involves loss of range of motion because the nerve defects and resulting pain associated with injury to the sciatic nerve may cause limitation of motion of the cervical, thoracic, or lumbar vertebrae. Therefore, pursuant to Johnson v. Brown, 9 Vet. App. 7 (1996), 38 C.F.R. §§ 4.40 and 4.45 must be considered when a disability is evaluated under this diagnostic code.
When a veteran has received less than the maximum evaluation under DC 5293 based upon symptomatology which includes limitation of motion, consideration must be given to the extent of the disability under 38 C.F.R. §§ 4.40 and 4.45, even though the rating corresponds to the maximum rating under another diagnostic code pertaining to limitation motion.
The BVA must address entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) if there is evidence of “exceptional or unusual” circumstances indicating that the rating schedule, including 38 C.F.R. §§ 4.40, 4.45, and 4.71a, may be inadequate to compensate for the average impairment of earning capacity due to IDS, regardless of the fact that a veteran may have received the maximum schedular rating under a diagnostic code based upon limitation of motion.
Question
Mr cue
Ok here is my first draft of the summary of issues.
I feel like I miss something. But This should at least have something that the va lawyer will have to answer.
After the telephone conference
I just have to add the rba pages once the record is serve for this appeal to the court smh
These are the issues that I would like addressed during my telephone conference
First the court set aside the effective date and Remand them to the board January 30 2021 rba
The board violated the court order and remanded them to the regional office to be granted in the first instance
This is a major error and not legal
An must be addressed.
The lower court can’t change a higher court order
The regional office made me do a new NOD to continue my appeal back to the board
The regional office used the new nod to remove me from legacy appeal and the court remand docket.
I never checked the box to remove my appeal from legacy appeal on there nod that was mail to me rba
So how was this remove from legacy appeal and the cavc remand docket?
The regional office has now turned my court remand in to a new 2021 appeal processed in the new appeal modernization system.
I ask for all my issues to be merge back with the cavc remand docket rba
Before any of this was done.
Even wrote on the nod this is a cavc remand rba
Never done now my smc benfit is been treated as new 2021 appeals
this was all done to not address my effective dates for SMC S.
Under Howell v Nicholson percendent
Cavc remand are to be track in the vacol system. So how was my cavc remand treated this way it not legal.
I ask that my whole case be addressed not just there errors of handling a cavc remand.
1. I have been ask for smc s housebound by fact to be addressed in my case for 4 years.
Under Howell v Nicholson cavc percendent
No one will address it or give me a proper decision or reason and base
I have been confined to my home since 1993.
The court has ruled that been confined to one home is not been able to leave to make a income.
Howell v Nicholson percendent
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).
Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra. The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the claimant is restricted to his house except for medical treatment purposes. The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended 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. Mr. Howell does not contest this interpretation.
Well I was denied because of I could travel to medical appointments
2001 I was granted tdiu pt One condition. 60% under rating code 5293.
The board has used the false statement that my tdiu is based on all my condition to not address my smc benfits.
To get tdiu based on more than one condition the combine rating must be 70%.
So how is it possible that my pt tdiu 60% rating 2001 included other conditions?
The law stated to not combine disabled if there is a chance at smc benfits. Va manual and cfr
Next I was told it is irreverent that I am 25 years tdiu. Rba
If I am tdiu for 25 years
I must have never been able to leave my home to make a income because I couldn’t work.
The va has my social security record which show I don’t Even have any work credits for Medicare or social security
Because I have never work since injury in service.
the board using it own interpretation of rating code 5293.
By stating this rating code included system of my elbow/hand and neck.
To not address or deny smc benfits
This is not legal
No where does rating code 5293 state this.
The statement on the 2001 dro decision is not legal it sound like they were making a deal with me for my rating.
To stop from inferring smc s back than.
The board is aware that I have been permanent And total since 1993. And have not worked since injury in service.
The extra schedulers tdiu pt rating decision from 2012 1993-2001 address this. Rba
The dro decision tdiu pt 60% 2001 address this rba
1114; 38 C.F.R. § 3.352(a)(2019); SMC benefits are to be accorded when a veteran becomes eligible without need for a separate claim; Bradley v. Peake, 22 Vet.App. 280, 294 (2008) (citing Akles v. Derwinski, 1 Vet.App. 118, 121 (1991)); Secretary’s duty to maximize benefits; Bradley, 22 Vet.App. at 294; see also AB v. Brown, 6 Vet.App. 35, 38 (1992);
the veterans affairs never address there error of never cretifed my appeal to the board 1993.
And how it remaining pending in appeal status for 8 years. 1993-2001
And never address that I was granted extra schedulers tdiu pt rating from 1993+2001
And how it effects my effective dates for smc benfits.
I was never give a reason and base that address this.
Or why I wasn’t granted or inferred smc s housebound by fact 1993.
Or 2001 or 2012 when the veteran affairs had all the evidence.
That I was pt and housebound. I was never given a reason and base
2. June 29 2021 the bva judge remand loss of use under smc benfits again after a cavc remand
This time the judge stated my condition has improved and that he is not accepting the specialized loss of use exam order.Rba
Because the examiner didn’t make a determination that I had loss of use.
This is not legal and was done to once again not address my smc benfits and to put a unfavorable medical opinion in my record after a cavc remand this is not legal.
The law the va is volating in my case.
Responsibility for Determining LOU The responsibility for determining whether there is loss of use (LOU) of an extremity
• rests with the rating activity, and
• cannot be delegated to the examining physician.
c. Information to Request From an Examiner to Determine LOU When requesting an examination to determine LOU of an extremity, ask the examiner to furnish a
• detailed objective description of remaining function
• quantitative assessment of strength for each extremity involved, and
• description of any pain that affects use.
Do not request that the examiner
• determine LOU, or
• express an opinion as to whether there is, or is not, LOU of an extremity or extremities.
Note: If LOU cannot be determined upon review of an examination report, request an appropriate specialized examination.
References: For more information on
• considering functional loss due to pain in claims for SMC, see Tucker v. West, 11 Vet.App 369, 374 (1998), and
• requesting a specialist examination, see M21-1, Part III, Subpart iv, 3.A.6.
d. Determining the Extent of Examinations in Claims Involving SMC Under 38 U.S.C. 1114(l) Through (n) Exercise considerable care when requesting examinations in connection with claims involving SMC under 38 U.S.C. 1114(1) through (n).
But the board rejected my 25 year record and the specialized comp exam and use a statement that my condition has improved. To shop for an unfavorable medical opinion after a cavc remand.
This is a cavc remand. The board isnt to be shop for a unfavorable medical opinion. By law
So the judge remand was not legal the examiner isn’t to make the determination the rating activity is.
I have a 25 year record of loss of use and over 20 comp exam and a extra schedulers tdiu bva decision and dro tdiu decision which all address my history of loss of use.
I even had 6 comp exam and a specialized loss of use exam. Since applying 2018
I receive in home care because of my loss of use.
I have ch 31 independent living records that address my loss of use.
All this evidence is part of my record.
But the board will not address any evidence or give a decision or a reason and base.
They have never inferred it or address it after the many exams and even after a remand.
So I guess it remaining pending in appeal status.
This must be addressed.
Smc benfits are granted by the record and effective by the record and inferred by the record
Why is my smc benfits appeal not been treated this way.
3. Exam and when can a veteran can say he has enough evidence and ask for a decision based on his record.
Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (Court noted that it would not be permissible for VA to undertake further development if purpose was to obtain evidence against appellant’s case)
Might also look at:
Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001), (in which the court stated that it would be improper for the Veterans Court to remand a case to the Board to give the DVA another opportunity to develop evidence needed to satisfy an evidentiary burden it had failed to satisfy the first time, i.e., to “attempt to introduce new evidence sufficient to make up the shortfall” in the agency’s proof. Id. At 1322.
My case is a cavc remand why is the va still trying to order exam and medical opinion After the court remand .
The June 29 judge remand is not legal on my loss of use under smc benfits
4. Why is the va treating my smc benfits appeal as a increase rating claim and treating each smc benfit as a claim. Even after I withdraw the increase rating 2018 because of there errors
My smc benfits claim and appeal now has over 5 bva judge that have rule on it. Each smc is been treated as a claim.
I don’tthink that many judges retired for this to be possible in one year for this to be possible
Some smc have been processed in legacy and some process in the new appeal system.
No one will address this not legal smc benfits is it owe thing and has it own ruled on how to handle them and process
No one will address this.
Smc is to be inferred by the record and effective and granted by the record.
I refuse anymore exams when my case was remand by the court and ask for a decision based on my record and effective by my record.
The bva judge address this and still order exams and even stated that my condition improved June 29 2021 remand To be able to order more exams after a cavc remand
The inspector general has issue a report on the va about the veterans affairs ordering unnecessary comp exams.
5. If the board has been aware since 1993 that I have never been able to leave my home to make a income.
And I was granted extra schedulers tdiu pt rating because I have never work since service.
Why isn’t my effective dates for smc s housebound by fact not 1993 date of service. By law.
Court need to address this or have va give a reason and base
If the dro granted tdiu pt 60% one condition. And address my need of help of other.
With the lay statement from my ex about my need of help and the extra schedulers tdiu pt rating decision also address it
Why isnt effective date for my smc l go back to 2001 or 1993 when this decision was made.
the board was aware I need help other and never inferred smc benfits. 2001 and 2012
Loss of use three extremities for smc benfits
The extra schedulers tidu decision and the dro tdiu decision address my loss of use. Elbow/hand and upper extremity even try to include it with rating code 5293
Smc benfits for loss of use was never inferred 1993-2001-2012-even now.
And I still can’t get them address even after I apply for them or give a reason and base
Even after the cavc remand it.
6. The veteran affairs has been aware not to try and include my elbow/hand and to address all this in my case since 1997. This must be addressed and I should be given a reason and base.
When I was stage rated 20% under rating code 5293 1993-2001. 2012 extra schedulers tdiu rating decision.rba
There is no reason and base for them to be try to stated my rating code included anything other than my neck.
Decision Assessment Document
VAOPGCPREC 36-97, Dec 12, 1997, Applicability of 38 CFR §§ 4.40, 4.45, and 3.321(b)(1) in Rating Disability Under Diagnostic Code 5293 (Intervertebral Disc Syndrome)
Office of General Counsel Precedent Opinion
What the case is about
Whether Diagnostic Code (DC) 5293, intervertebral disc syndrome (IDS), is based upon loss of range of motion, and therefore whether 38 C.F.R. §§ 4.40 and 4.45 are applicable in determining the extent of a veteran’s disability due to IDS.
Whether 38 C.F.R. §§ 4.40 and 4.45 must be considered where a veteran receives less than the maximum schedular rating under DC 5293, but that rating corresponds to the maximum schedular rating under another diagnostic code pertaining to limitation of motion.
Whether 38 C.F.R. § 3.321(b) must be considered when a veteran receives less than the maximum rating under DC 5293, irrespective of whether 38 C.F.R. §§ 4.40 and 4.45 must be applied in such a case.
Impact on VBA
Diagnostic Code (DC) 5293, intervertebral disc syndrome (IDS), involves loss of range of motion because the nerve defects and resulting pain associated with injury to the sciatic nerve may cause limitation of motion of the cervical, thoracic, or lumbar vertebrae. Therefore, pursuant to Johnson v. Brown, 9 Vet. App. 7 (1996), 38 C.F.R. §§ 4.40 and 4.45 must be considered when a disability is evaluated under this diagnostic code.
When a veteran has received less than the maximum evaluation under DC 5293 based upon symptomatology which includes limitation of motion, consideration must be given to the extent of the disability under 38 C.F.R. §§ 4.40 and 4.45, even though the rating corresponds to the maximum rating under another diagnostic code pertaining to limitation motion.
The BVA must address entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) if there is evidence of “exceptional or unusual” circumstances indicating that the rating schedule, including 38 C.F.R. §§ 4.40, 4.45, and 4.71a, may be inadequate to compensate for the average impairment of earning capacity due to IDS, regardless of the fact that a veteran may have received the maximum schedular rating under a diagnostic code based upon limitation of motion.
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Ok here is my first draft of the summary of issues. I feel like I miss something. But This should at least have something that the va lawyer will have to answer. After the telephone conferen
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