Need to vent today

[Mr cue]

Well my mental is everywhere today I am waiting for the VA lawyer to put in there brief to the court.

Could be today or Monday I will be a long weekend smh.

Well after this my lawyer has 10 days to reply an the record of proceeding is due in 7.

So it will be with the judge end of the month.

This has been almost a 4 to 5 year fight for my smc benefits. The 2 nd time at court. Smh.

Now to my beef with the VA.

I have had over 5 comp exams for loss of use and even a specialized loss of use exam. All favorable

The VA refuse to accept any of there exams.

Well the court remand my case an the VA stated my condition improve and they need to order another exam.

Judge stated if I refuse the exam do a report on my record. Smh.

Well the ro held my case for 6 months shopping it to different comp place.

Then turns around an stated they can't do a ace exam it must be a in person exam.

Long story short I withdraw the remand because they were hold my smc o and r which is need for my in home care.

Which the courts bva ro all advance my case because it was case harm to health.

Any way so now I sit here 5 years without my benefits.

Because the VA is choosing to fight because they mess up and owe me years of retro.

I will say I fought for my 8 years retro tdiu and won.

An this fight is the most crazy process I have ever been a part of.

Well we will see in a few weeks how all this will pan out.

An yes I am still fighting the housebound by fact.

Which I feel should have been granted 2001 when I was granted tdiu.

Congress intended for the smc s housebound by fact was for veterans who are not able to leave there home to make a income.

Now the VA doesn't acknowledge this an only grants smc s when a veteran gets the extra 60%

I can't wait to see how the court address this.

Ok I am done I got to get this out my mind I was doing so good. Lol smh

 

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[Richard1954]

20 hours ago, Mr cue said:

Now the VA doesn't acknowledge this an only grants smc s when a veteran gets the extra 60%

As far as I know a TDIU alone was never grounds for SMC S.  And it wasn't until Bradley V peake that SMC S was granted when a veterans has a TDIU and a separate 60% rating.  Now I am not saying you can't or won't get it, but if you do get it without an additional 60% I will be glad for you but  surprised.

[Mr cue]

Richard read Howell v Nicholson.

An what Congress intended was for housebound by fact.

Than let's talk about it 

[Mr cue]

I am going to put this out there again maybe it will help others 

What i am fighting is smc s housebound by fact not smc s 100/60.

There are two smc s benfits.

Ok based on Howell v Nicholson

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

Based on Congress intend.

Ok the court rule the VA can't denied veterans because they attend medical appointments.

So the way a veteran show that they are housebound by fact is to show they can't leave there home to make a income.

Ok this is my belief what  group Of veterans can't leave there home to make a income an can show it.

Tdiu veterans.

I belief Congress intend this benefit for tdiu veterans.

I am at the court now fighting this I was denied because I could travel to medical appointments.

 I can't make this up.

So we will see how this works out.

 

Howell versus Nicholson, March 23, 2006 number 04-0624 CAVC "The term "substantially confined" is not defined by statute or regulation. See id. 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.  

 

[Phury & Rhage]

Hi Cue,

I'm sorry you are having a rough time of it.  You are correct that there are 2 types of SMC S: housebound-in-fact and statutory housebound.  I'm putting in a screenshot of the M21 reference that addresses it:

As for what someone mentioned earlier about TDIU being used as the single 100% evaluation for statutory housebound - that's a true fact.  I'm a schedular 100 now, but I was awarded TDIU before I made it to a schedular 100.  I was (still am) getting statutory housebound (SMC S) and it is because of the TDIU that I have a "single" 100% evaluation.  Separately, my highest individual evaluation is 60%.  I'm going to put in the Manual reference that covers this:

Notice the "Exception".  Keep in mind, the IU must be granted based on ONE disability for TDIU to count as the "single disability" rated at 100% for statutory housebound purposes.

Personal story:  I appealed my TDIU effective date and won in 2012.  At the time, I had no idea about SMC S.  My TDIU was back dated to July 2001.  I carefully did all the math (how much they already gave me; what I should have been getting) and figured it was a little over $40K.  When the retro was deposited, it was over $93K!!!  My decision narrative didn't explain the math.  It wasn't until I went to work for the VA as a claims processor (6 years later) that I found out about SMC S, lol.  If you look at the next to the last bullet above, that's what happened to me.  Bradley v. Peake allowed them to backdate SMC S to a date prior to the court decision.  Good times. 

As for housebound-in-fact, I will put in the Manual reference for it, but I don't have any real experience processing those although I expect that to change shortly...

Although I haven't processed any, it appears to me that you have to have a single 100% disability that is part of the reason for being housebound.  Also, the housebound state has to be permanent.  So if there if the 100% single disability could or is expected to get better, they won't award housebound-in-fact.  Hopefully the facts are on your side.

Anyway, I hope it gets better soon!

Phury  

 

 

 

 

[Mr cue]

5 hours ago, Phury & Rhage said:

So if there if the 100% single disability could or is expected to get better, they won't award housebound-in-fact.  Hopefully the facts are on your side.

You are so right. This was my first fight. VA saying all my disability make up my award of tdiu.

I beat this because I was granted 60% one condition tdiu.

To get tdiu based on more than one condition the combine must be 70%.

Now It  was just denied again because I can travel to medical appointments.

So now I am at the court.

The VA will not.addess anytime period before I apply for smc 2018

Keep using the effective date is the date of claim or one Year.

Not that smc effective by the record and granted by the record without a need for a separate claim.

So I am just waiting to see how this all play out.

 

 

[USNDW]

I feel you CUE. I was awarded Housebound in 2010 after they corrected a CUE for right knee residuals, and awarded loss of use.

It is amazing that I can read the CFR and USC and see the regulations and laws and yet the RO will deny, deny, deny.

I am working with my Senator and I want an impact from some authority to hold VA adjudicators accountable for their work. If there is evidence to support a claim, why do we have to fight for years? It is not supposed to be that way.

Hang in there and keep fighting until they provide you your benefits