Howell v Nicholson

[Mr cue]

Ok here is the way the lawyer word the issue.

I am happy now we just waiting to see who is going to address it.

The VA brief is due in 20 days they will try to get a extension I guess the court will give them 10 extra days.

So about 30 day we will see how the veterans affairs lawyer answer it.

Only thing that bother me is he is not showing that I have not been able to leave my home to make a income since 1993.

But hAy I could get it all address.

 

 

2. The Board’s statement of reasons or bases denying an earlier effective date
than May 9, 2018, for SMC based on housebound status under 38 U.S.C. §
1114(s) was inadequate.
Pursuant to 38 U.S.C. § 1114(s) a veteran is entitled to SMC if his or her service
connected disabilities render the veteran permanently housebound. The requirement of permanently housebound” will be considered to have been met when the veteran is

substantially confined to such veteran’s house (ward or clinical areas, if institutionalized)

or immediate premises due to a service-connected disability or disabilities which it is

reasonably certain will remain throughout such veteran’s lifetime. 38 U.S.C. § 1114(s).

The term “substantially confined” is not defined by statute or regulation. Howell v.

Nicholson, 19 Vet. App. 535, 540 (2006). The Secretary has taken the position that

“substantially confined” is met when the claimant is restricted to his house except for

medical treatment purposes. Id (noting Senate Report No. 1745 (June 27, 1960) that

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). The Court has held that leaving the house

for medical purposes cannot, by itself, serve as the basis for finding that a veteran is not

substantially confined for SMC purposes. Id.

Here, the Board did not define the term “substantially confined” nor did it address

the Court’s holding in Howell, 19 Vet. App. at 540 or Congress’s intent behind the statute.

Johnson v. Wilkie, 30 Vet. App. 245, 254-55 (2018)(stating that without a standard for

comparing and assessing terms, such conclusory findings by the Board are unreviewable

by the Court and prevent the veteran from what his evidence must demonstrate for a benefit

to be granted). This is to say that the Board did not explain why the functional limitations

identified by, inter alia, the 2018 VA examiners and paraprofessional care plan, showed

that possessed the ability to overcome his particular disabilities and leave the house

in order to earn an income. Howell, 19 Vet. App. at 540. As noted above, the evidence of record shows that mr cannot travel beyond his current domicile, is unable to dress and

 

undress himself, do dishes, housework, prepare meals, or put away groceries, and has some

difficulty in the ability to feed himself, bathe, groom, use the toilet, drive, change from a

sitting to standing position, and walk long distances. R. 1430-31 (1430-31), 2310 (2309-

13). The Board’s failure to define “substantially confined” and apply these limitations to

[Rivet62]

10 hours ago, Mr cue said:

Only thing that bother me is he is not showing that I have not been able to leave my home to make a income since 1993.

But hAy I could get it all address.

Something bothers me about this statement.  I am assuming you now have an attorney?  "he is not showing that I have not been able to leave my home...But that [sic] I could get it all address."   That sounds similar to what my attorney told me about my desire for TDIU.  It was like the attorney was not addressing TDIU.  I could only guess that he was trying to build up my back pay by delaying the issue. If I had a greater back pay (TDIU) he would get a greater percentage in the future. I asked him how he could afford to work these vets disabilities claims and wait so long for his money. He said it was like money in the bank for the future and in the meantime he also worked cases outside of veterans disability law that paid quicker (like auto accident, etc). The bad thing about my attorney is that he presented himself as working exclusively as a veterans disability law attorney, when in fact his attention was very divided working primarily on cases having nothing to do with veterans disability law. Could it be that your attorney is doing the same with your SMCs? In other words, could it be that your attorney is deliberately adding unnecessary delay to your SMCs claim(s)similar to the delay tactic that my attorney employed?

My attorney told me the exact same thing when it came to my concerns for my TDIU, oh it will get addressed and the way he wanted to go about it was by adding YEARS to my TDIU outcome when in fact all he had to do was submit a form at the earliest opportunity.

CORRECTION: I see in your other posts that your attorney is Pro Bono.

Edited April 7, 2022 by Rivet62

[Mr cue]

Yes when you hire the lawyer you are in there hands.

I am fine with what he did.

I just hate that a few of the issues I had. Are no longer going to be address.

But I am get to the point.

So I am like whatever. An that is bad.

I will be having a conversation with him today or tomorrow.

About the other case if he try to not address my issues in that case I will do it myself.

I am not just letting my issues go.

 

[broncovet]

Rivet posted:

Quote

Could it be that your attorney is doing the same with your SMCs? In other words, could it be that your attorney is deliberately adding unnecessary delay to your SMCs claim(s)similar to the delay tactic that my attorney employed?

I have heard this a lot.  In this case, it is not applicable, for sure.  Mr. Cue is already receiving SMC (levels higher than S), so delays wont add to the retro.  In other words, his attorney is seeking compensation for the Veteran from period DDMMYY to DDMMYY (when VA first started paying Mr. Cue for SMC) and NOT from DDMMYY to present.  In other words when the Veteran is already SC for the condition, any delays wont add to the retro, because its a fixed period of time, not open ended to the future.  More on point:  The attorney is pro bono, so he doesnt get paid no matter how long it takes.  

..Now, on to Howell.  

     I think it was Berta who pointed out Howell vs Nicholson was a remand, not a reversal.  This is significant.  Often remands are for procedure mistakes..for example not giving an adequate reasons and bases.  If the board did not give an adequate reasons and bases, or otherwise violated some other procedure, this does NOT mean "all" of us will get a reasons and bases remand, whenever we have tdiu if VA does not award SMC S.  Not even close.  

     While I would like to think the reverse, Howell did not say that everyone who has tdiu will also get SMC S, tho I agree that is a reasonable interpretation.  I thought the same at first.  

     After dwelling on it in my mind, it is "highly significant" this statement was not made by the court, but rather by the Secretary's own reference to "congress intent".  (to compensate Veterans for being unable to leave the home for work, as opposed to not being able to leave the home at all).  

      "Congress intent", while certainly "evidence for the claimant", is decided by the Supreme Court, not you and I, not the BVA, and not CAVC.  

       And, Howell has never been tested by the Supreme Court.   Until then, the VA gets to interpret it "how they want" because of the Chevron Deference.  Remember, Chevron Deference means that "The agency" (of the government) gets to interpret its own regulations at least until the Scotus rules that their interpretation is incorrect.  

     Unfortunately, VA has taken a stand interpreting Howell to mean that a claimant can leave the home for medical purposes, and still get SMC S.  Remember what Howell was about.  The VA used to deny pretty much any Veteran "who showed up" for his SMC S housebound exam.  It was a no brainer for VA, and a lose-lose for Veterans:  If they showed up for a housebound exam, that means they left the home, and if they did not show up, they were denied for failure to show for an exam.  

       Howell "pushed that" unfairness, and did win because VA conceded that it was not congress intent to deny every Veteran SMC housebound simply by showing up for an exam, because that means he left his home.  But VA did not go along with our interpretation that means every TDIU vet gets SMC because they are not leaving the home for work, if they are tdiu.  

      If you read the M21, it shows that VA interprets Howell to mean you can go to a housbound exam, and VA wont deny you because of that, only.  One key is the defination of "substantially confined"..what does that mean?  Well, VA says it means they can leave the home for medical appointments ONLY.  

       I have, like you guys, a very bad taste in my mouth because of VA's interpretation.  But, I dont have to like it.  

I just have to comply.  I really dont like that marijuana is legal in some states, not in others, either.  The law does not always have to make sense to us.  

      Many years ago, there was a road closed for construction near my home.  I had to go a long ways out of my way, to avoid the road closure.  

     One day, when the construction was nearly complete, I saw there was no longer a "road closed" sign, so I proceeded on through the construction, avoiding construction equipment on a dirt road yet to be paved.  

      Here comes the lights!  I was pulled over by a policeman.  He gave me a ticket.  I said I did not see a "road closed sign". He said "You should have common sense".  

     Well, I called his boss and he said "I will check that road" to see if there is a "road closed sign".  He said if there was no sign, he would dismiss my ticket.  It was dismissed.  

    If they put everyone in jail "who did not have common sense", then most of us would be in jail, because we probably have done something during our lives that many others thought was not common sense.  I have.  "Common Sense" is highly opinionated, and you really cant have a law that everyone not exercising common sense should be put in jail.  

     My wife hates "white food" and feta cheese.   But she loves Lasagna, which, of course, contains Feta cheese.  Does that make  common sense?  Not to me.  Maybe she should have to go to jail for eating lasagna, because that makes no sense (to ME).   

 

[Mr cue]

Do u understand Howell was a precedent.

why you ever seen a remand change the VA manual. Smh.

The court has rule and this is law more than one judge rule on this decision.

Read it before you try to down it.

Because the VA choices not to interpret as  a court percendent.

Is the issue.

Like I said I just want the answer.

If so I get smcs back to 1993 and smc l from 2001.

But the VA is only addressing the time period from when I apply 2018.

I have a 25 year record they must address.

I posted to give the road map how to fight for it if you choose.

 

 

[Rivet62]

42 minutes ago, broncovet said:

Mr. Cue is already receiving SMC (levels higher than S), so delays wont add to the retro

Ahh...

43 minutes ago, broncovet said:

In other words when the Veteran is already SC for the condition, any delays wont add to the retro, because its a fixed period of time, not open ended to the future. 

Oh ok

43 minutes ago, broncovet said:

More on point:  The attorney is pro bono, so he doesnt get paid no matter how long it takes.  

Ah yes, I realized that in his comments on another post.

45 minutes ago, broncovet said:

..Now, on to Howell. 

Food for thought.

[Mr cue]

Well after along talk with the lawyer I am going to let him handle ever case at the court.

We are on the same page.

He not abandoning my issues.

So I think it will turn out well.

Now sit back a relax for 2 3 months lol.

But I am really going try an let it go.

He calls me Right back so I don't worry to much.

I will give his name after all this is done I believe he is a good lawyer.