Do I qualify for SMC-S

[MFZ]

 I am 100% P & T for a service connected aortic aneurysm.

I am 10% SC for hypertension.

I am 20% SC for painful surgical scars , bilateral lower extremities.

I am 30% SC for ischemic stroke with right homonymous hemianopia.

I am 10% SC for tinnitus.

I am also 0% SC for bilateral hearing loss.

I am also 0% SC for peripheral vascular disease of the right and left lower.

I represent myself , so I need advice as to if I qualify for SMC-S and if I do, how to go about filing for it.

 

[Mr cue]

Back to are debate over Howell v Nicholson law.

I think this should even help understand were I am coming from. 

 

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.

 

So the court has address what confine to one home mean.

And even stated Congress atten.

 

The VA should be awarding smc s to veterans when that become tdiu.

By law

Not when they meet the 100/60. Later on.

 

[ShrekTheTank]

4 hours ago, Mr cue said:

Back to are debate over Howell v Nicholson law.

I think this should even help understand were I am coming from. 

 

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.

 

So the court has address what confine to one home mean.

And even stated Congress atten.

 

The VA should be awarding smc s to veterans when that become tdiu.

By law

Not when they meet the 100/60. Later on.

 

I can't agree with this statement.  Do I think if the only thing you can do is go to doctor appointments and that is it should have HB, it seems to be right?

As for TDIU, there is no way everyone who receives this is HB.  If we are following the conditions set for getting TDIU:

To obtain TDIU, all of these conditions must be true:

• The veteran must have at least one service-connected disability that has been rated at 60% or greater disability; or two or more service-connected disabilities, provided that at least one is rated at 40% or greater disability and the combined disability rating is 70% or greater
• The veteran must not be able to hold down a steady job that supports them financially because of the service-connected disability (also known as substantially gainful employment)
• The veteran must not have been dishonorably discharged
• Veterans who have paying jobs may still be able to qualify for a TDIU rating. Marginal employment, such as odd jobs, do not count as substantially gainful employment. The income earned must be below the federal poverty level.

The VA does allow for some work to be able to be performed.  This would not make you HB.  

[broncovet]

Mr. Cue:

    The above paragraph, from Howell does not say, "Each and every tdiu Vet should get SMC S".  

This, sir, is your interpretation of that paragraph, and, I actually see how you could interpret it that way.  I actually did the same.  However, you have to remember, the Scotus decison often known as "Chevron Deference" explained that "the agency" gets to interpret their own regulations as they see fit.  

    Example:  We have an interpretation of "benefit of the doubt", which is probably very different from VA's.  Guess which one the court enforces..our interpretation or VA's?  

    In a similar way, I agree that Howell "comes close" to saying that every tdiu Vet should get SMC S, because, if the Vet is not working, he isnt able to leave the home "for work".   The VA's interpretation craftily leaves out the term "for work", even when its in "congress intent".  

    Unfortunately, neither "your interpretation", nor "my interpretation" of this is the deciding factor, but rather, VA's own interpretation.  

    The VA stated their interpretation of Howell:  They said that Howelll means that the Veteran can get SMC S, if he goes to doc appointments, but he stil has to be "substantially confined" to the premisis.  

    To force the VA's hand here, is likely gonna need additional precedential opinions, supporting Howell,s "cant leave the home for work".  

     I would like to see someone like Mr. Carpenter  or CCK law call out VA on this..probably in a Federal Circuit appeal.   Until that happens, Va is free to interpret their own regulations as they please.  Our interpretations of Howell dont control this, its controlled by VA's interpretations, until the courts decide otherwise.  

     I think "the VA is ripe" for a challenge to their interpretation of Howell..  I also think Va will defend their postion fervently, and vehemently.  

     In my case, the VA "avoided my legal challenge" to Howell, by awarding SMC S..in another VARO decision, because they understood that I was quite capable, of hiring "one of the biggie law firms" to fight for me.  To avoid that, and have to pay SMC S for all Vets, they simply granted me SMC S.  

     The courts do not take up "hypothetical" cases..there has to be "case or controversy", so I can not appeal SMC S, if I have been awarded it.  I could only appeal the effective date, which, Im considering.  

     The VA gladly allows "onsie/twosie" Vets to get benefits, so they dont have to address thousands of others who should also get them.  

Edited February 13, 2022 by broncovet

[Mr cue]

50 minutes ago, broncovet said:

Unfortunately, neither "your interpretation", nor "my interpretation" of this is the deciding factor, but rather, VA's own interpretation

Well this statement i have issues with that why they have a court.

To make sure the vs is interpreted the law right.

54 minutes ago, broncovet said:

Chevron Deference" explained that "the agency" gets to interpret their own regulations as they see fit.  

And if you believe this no one would ever win at the court.

The court has address it it not a bva decision did the say what 

Confine to one home is.

Did they address Congress atten. 

I don't see were all that get thrown out the window.

The change the manual for the Howell v Nicholson.

So 

59 minutes ago, broncovet said:

The above paragraph, from Howell does not say, "Each and every tdiu Vet should get SMC S".  

It say a veteran is confine to his home if they are not able to leave to make a income. Period..

Well I am back at the court an they will be addressing it in my case.