TDIU and SMC S

[Berta]

There has been a lot of discussion here on SMC s and maybe this BVA case will explain our points on it:

https://www.va.gov/vetapp21/Files7/A21012520.txt

or this one:

https://www.va.gov/vetapp21/Files11/A21018338.txt

or search the BVA for TDIU and SMC - the denials are as important as the awards and remands.

[broncovet]

Berta:

    I read the first decision, and found this paragraph to be especially significant:

Quote

The Board has considered the Veteran's education, training, and work history as reflected in the record, as well as the lay and medical evidence regarding the functional impairment caused by his service-connected disabilities.  The Veteran has experience as a supervisor and president for a company.  He is also a high-school graduate.  Given the Veteran's specific history and disability picture, the evidence supports that the Veteran could perform some forms of employment prior to September 17, 2010 when considering his service-connected disabilities alone.  

Based on the foregoing, the evidence shows that the Veteran has been awarded a combined 100 percent rating effective from August 5, 2010, and the Veteran is not prevented from obtaining/maintaining substantial gainful employment due to any of his service-connected disabilities alone for the period prior to September 17, 2010.  Therefore, the benefit of the doubt doctrine is not for application, and the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 54-56.

"The Board" has acted "in place" of a Voc Rehab speicialist.  The Veteran could/should have appealed this board decision, along with a favorable IMO from a Voc rehab specialist, he should win.  The board is not competent to opine whether or not this Veteran "could obtain" employement with the afore mentioned disabilities, instead, this should be done by a voc rehab specialist, after extensive consultations with the Veteran.  

My attorney, fortunately, saw something very similar in my board decision, challenged it, won a remand.  He then said I needed a favorable IMO from a Voc rehab specialist to win it.  I did as he suggested and won my benefits at remand.  

"The Board"  does not have expertise as a voc rehab specialist, and should not try to substitute their own opinion for that of a qualified Voc rehab specialist, who is trained to render such professional opinions.  

The above quoted paragraph is "VA ola" meaning "you need a voc rehab IMO to win this".  

[Mr cue]

See this we're the problem come in to play.

Entitlement to special monthly compensation based (SMC) on statutory housebound basis is denied.

See where it say statutory housebound. That is the 100/60 stuff.

Housebound by fact is the other smc s that you never see the VA granted

1 hour ago, Berta said:

There has been a lot of discussion here on SMC s and maybe this BVA case will explain our points on it:

I don't think a bva is more important than the cavc Howell v Nicholson case.

The court has ruled.

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

 

[Mr cue]

1 hour ago, Berta said:

There has been a lot of discussion here on SMC s and maybe this BVA case will explain our points on it

Berta plz don't take my post as anything.

Your info on the subject is helping me get my brief ready for the court.

I have to debate the law in my brief for the court. Against the VA.

So I just wanted to say I love your post and they help me alot.

An I am just debating what I feel

Howell is and see how other see it.

It help me look at it from ever Angle.

If you remember me when my old screen name was yulooking.

Me you and Carlie debate the law alot 

I think you were in your fight with the VA at that time.

Your info help me win my cue.

I just want to say that.

[Berta]

Mr Cue -I admire your tenacity in trying to get what you feel you deserve.

I just do not see the CUE in your regard but then again-I sure do not know it all.

I have not seen Howell V. Nickolson ever referenced at all by the BVA in any decision.

Even the TDIU regulations have been around since 1975, but they have been amended many times:

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996; 79 FR 2100, Jan. 13, 2014]

https://www.law.cornell.edu/cfr/text/38/4.16

The first time TDIU shows up at a historic BVA search is in 1994- there were 9 cases re: TDIU in 1994, that were filed prior to 1992.

I realized that the vets, when I was voted into the PTSD combat Rap group at a vet center (1983) never mentioned TDIU.I never heard of TDIU until I moved to NY many years later.

Most of them had 100% SC for PTSD from the VA ( often called nervous condition then)

 

 

Edited February 13, 2022 by Berta
added more.

[Mr cue]

Berta I understand.

How It is I don't no everything either but I do no how to fight the va with law.

 I learn what a cue was from your posted.

About your cue claim 2002.

It help me win my 8 year retro

An I would like your experience in what I am try to do now.

I don't no how to post links. So I will give you my bva decision docket number.

This is the decision that granted tdiu from 1993-2001.

It address all the evidence need for smc benfits I believe.

DOCKET NO. 09-19 043  4/11/12.

There is like three decision made under this docket if you can post the link.

I might can explain.

An I have done a cue yet on this decision.

I was granted smc benfits 2018 when I apply.

The VA is refuse to address this decision.

I am at the cavc appealing the effective date. Of 2018.

Based on this bva decision from 2012.

The board should have inferred smc benfits by this decision.

 

[Berta]

Robert L. Howell served in the US Army from April to September,1951.

 

 

 

"Based solely on the medical opinions of Dr. Raghavan and Dr. Duque, the Board determined

that Mr. Howell was not entitled to SMC-AA benefits because "it was only from a combination of

his service-connected and non-service-connected disabilities" that Mr. Howell required the assistance

of others. R. at 11 (emphasis in original). However, these medical opinions lacked the proper

foundation to be given any weight. "

 

Howell should have submitted a strong IMO/IME that could have completely altred his case.

 

As I mentioned here before, his 100% P & T schizophrenia did not necessarily mean he was unemployable or that he was "substantially confined" to his home. In addition to former hadit  member Terry Higgins, and even a Navy friend of mine-)( a school teacher) sometimes this MH disability can be controlled. (schizophrenia)

 

"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."

 

That statement of intent by Congress means to me ,that if a veteran's service connected disabilities prevent them from leaving their home except for medical treatment, they are "substantially confined" to their home.

 

 

Additionally this statement " 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."

 

This means to me,as a personal example:

 

My  husband with 100% P & T for SC PTSD, could not work, due to a Section 1151 stroke. Rated at 80% in 1998 , subsequently raised to 100% via SSDI ,2 awards, I explained before, Voc Rehab records, VACO Mdical review, OGC FTCA case, Student loan Waiver, and letter from a former VA Secretary to him, as well as extensive documented proof of the malpractice ( I had no IMO, and didnt need one at that time).

 

Section 1151, 38 USC means " as if" service connected, this is the way VA compensates documented proven malpractice hether or not FTCA was filed.

 

So the 1151 aspect does not matter.

 

Due to the stroke my husband was unable to work again. He had worked for the Electric Company, and also the VAMC. He wwas a former Nuclear power plant Operator as well as he had a Boilerman's licence, was a fully qualified Fireman, and also was a licensed PHVAC for many years.

 

Two days of extensive psychiatric tests at VA were able to separate the Stroke residuals from his PTSD.

 

He could not drive, had trouble with his mobility, could no longer use a PC affectively, and had severe short term memory problems, visual problems, and got lost during a trip from VA 21 day PTSD Buffalo inhouse program. He managed to find a pay phone and called me collect- he never forgot our phone number, and the stroke never took away Vietnam.It was a severe short term memory loss.

I asked him to describe where he was in Buffalo. He was unable to read street sign and the name of any store or business due to the occipital nerve damage of his eyesight due to the stroke , I could hear him ask passerbys where he was, but with a USMC cap on, and cameos covered with Vietnam and POW stuff,no one would help him, thinking he was a crazy vet from the Buffalo VA.

 

This was documented in his 21 DayVA records. Suddenly someone else got on the phone- "We found him Mrs Simmons!" -it was the PTSD team leader.

 

The VA had a lay statement from me along with the claim.But all of the evidence supported that statement.

 

I came in from feeding the livestock one AM to all of our smoke detectors going off. He has started to cook something and walked away from the stove. He was taken to Day Treatment at the VAMC 2-3 days a week, as part of a respite program-the VA van took him and brought him home.The respite was for me to catch up on the farm work-I was a livestock farmer. I had tons of hay, square bales, to unload from the wagon and stack, many times in the summer ,among all of the other things a livestock business involves. Our heater broke one winter and as a PHVAC he tried to fix it and broke it even more.I had never seen him cry like that before. He was devastated that he could not fix it- I enclosed the heater bill with my lay statement on this.

 

I agree with the statements in Howell as to congressional intent and the SMC regulations.

 

 

 

 

 

"In light of our holding here today and the fact that this matter is being remanded for

readjudication, the Court need not address the various notice-error arguments raised by Mr. Howell.

These purported errors, which were not raised to the Board, can be addressed on remand. See

Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000) (with regard to a claim properly before it,

Court is not compelled to hear legal issues raised to it in the first instance). Moreover, on remand,

Mr. Howell will have the opportunity to present any additional evidence and argument in support

of his claim, including the notice arguments raised to the Court, and any evidence and argument so

presented must be considered. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court expects

that the Board will provide expeditious treatment of this matter on remand. See 38 U.S.C. § 7112.

III. CONCLUSION

Upon consideration of the foregoing, the February 2, 2004, decision of the Board is SET

ASIDE and the matter is REMANDED for readjudication consistent with this opinion.

SET ASIDE and REMANDED."

 

Unfortunately, this case hs no additional info at the CAVC- I a used to more current cases whereby, in a search you can find th BVA decision they appealed to the court.

 

I have been unsuccessful so far in finding BVAs decision on the remand.( assuming it was denied at the VARO level and appealed again)

or maybe Howell won at the VARO level- or maybe he died and no subsitution was possible.

 

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=CaseQuery.jsp&cnthd=1234465763&caseid=35862&csnum1=04-624&shorttitle=Robert+L.+Howell+v.+R.+James+Nicholson

 

I regret that my advice here is the same as it was- it is possible an IMO/IME doctor with expertise in the field of your disability, and with proof of Housebound criteria, from your medical records and any other entities ( lay statements etc) could change this for you .at the RO level or at the BVA,if BVA gets the claim back again.

 

VA also consided him for A & A but he could button his clothes and feed himself, and showed every day and shaved , but I had to stay with him while he showered. VA gave him accomodations for the shower.

Shower seat rails, and a portable shower head. They denied A & A and they were correct.

 

Others will comment on Howell.

I have No evidence that Howell succeeded in his claim.

Remans do not set precdent because the claim is still open, and many closed cliams at CAVC are not precedental. CAVC cases that are, clearly state that.:

 

https://cck-law.com/blog/10-cavc-cases-all-veterans-should-know-part-2/

 

Most of us here are familar with these important precedent setting cases.