VA lawyers are a joke.

[Mr cue]

Man I can't get this out my mind.

Here is the VA lawyer response to the Howell v Nicholson issue in my case.

Housebound by fact.

I may help other understand housebound by fact.

Well I just got told the effective date is the date of claim an that is the end of it. Lol I cant make this stuff up.

They don't address when and how effective dates are to be handled for smc. Smh Barkley v Peake.

They will not explain the part we're it stated been confine to one home is not been able to leave to make a income.

They are refusing and hope the court doesn't address it.

This is how the VA works and these are VA lawyers do you think they don't understand the case.

 

THE BOARD PROVIDED AN ADEQUATE STATEMENT OF REASONS OR BASES WHEN DENYING AN EFFECTIVE DATE EARLIER THAN MAY 9, 2018, FOR SMC BASED ON HOUSEBOUND STATUS UNDER 38 U.S.C. § 1114(S) IN ITS NOVEMBER 23, 2021, DECISION.  
 
Appellant argues that the Board in its November 23, 2021, decision provided inadequate reasons or bases as to SMC at the housebound rate.  [App. Br. at 2627].  This argument is without merit. 
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 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). Generally, the effective date of an award “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.”  38 U.S.C. § 5110(a); see 38 C.F.R. § 3.400 (“Except as otherwise provided, the effective date of an evaluation and award of . . . compensation . . . based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later.” (emphasis added)).  However, in a claim for an increased rating, the effective date may date back as much as one year before the date of the claim for increase if it is factually “ascertainable that an increase in disability had occurred” within that one-year period.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  It is well established that a Board determination of the proper effective date is a finding of fact that the Court reviews under the “clearly erroneous” standard of review.  38 U.S.C. § 7261(a)(4). 
Here, the record reflects that, on May 9, 2018, Appellant filed a claim seeking SMC, [R. at 2204 (2203-06)], which serves as the current effective date for SMC at the housebound rate.  See [R. at 48]; [R. at 745-49]; [R at 996 (988-96)].  In this regard, the Board found that “the record indicates his eligibility for statutory housebound status arose due to service connection for adjustment disorder being granted from May 9, 2018” and “as of May 9, 2018, the Veteran had one disability rated as totally disabling.”  [R. at 48].  Thus, as the Board found, the facts in this case do not support an effective date prior to the May 2018 date of claim.  Id.; see 38 C.F.R. § 3.401(a)(1).  While Appellant argues that the Board provided inadequate reasons or bases for denying SMC at the housebound rate because it did not define the relevant term of “substantially confined,” [App. Br. at 26-27], the earliest possible effective date for SMC statutory housebound eligibility has been assigned.  See Lamb v. Peake, 22 Vet.App. 227, 235 (2008) (holding that there is no prejudicial error when a remand for a decision on the merits would serve no useful purpose).  Crucially, Appellant fails to explain how any such definition could result in an EED and the argument should be rejected by the Court.  Hilkert, 12 Vet.App. at 151; Brewer v. West, 11 Vet.App. 228, 236-37 (1998) (holding that where appellant offers “mere assertions . . . for which he has not provided any legal support, . . . the Court need not deal further with such a vague argument

 

[broncovet]

 IT SOUNDS like you have significant experience, and you are "on it". 

This does sound like a judges decision, not a lawyer.  

It also sounds like your appeal was, basically denied.  

Is this the appeal where you went pro se, or is this the one where you were represented by an attorney?  

"If" you were represented by an attorney, you and your attorney should confer and decide if an appeal to the Federal Circuit is indicated.  

You may be able to hire an attorney even if you were pro se.  

You see, the law says, a pro se claimant is, well, handled "less strict" than one represented by an attorney.  

The judge said your arguement was "vague"?  

If you do enlist an attorney, you could argue that VA has a "duty to assist", and, if the judge thought your arguement was "vague", then you should have been given ample opportunity to correct any possible deficiency in your arguement in order to clarify it for the judge.  

If it were my claim, I would consider sending a copy of this decision to CCK law, or Ken Carpenter.  They "may argue" that your disabilty prevents you from navigation specific legal arguements sufficient to satisfy the court, and that you deserve at least a remand from Federal circuit, to clarify any deficiency in your arguement.  

But, do as you please.  

What I have seen happen is "the lawyer pries the claim open again", such as with a remand, and you get the opportunity to address what the judge refers to as "vague", this time, with counsel.  

Edited July 14, 2022 by broncovet

[broncovet]

Remember, the CAVC "is not a trier of fact".  Instead, the board "determines the facts".  

So, many lawyers, instead of disputing the Board "factual determinations", try to find some legal error..get a remand (which allows new evidence).  In the new evidence, your attorney could clarify your arguement, so that its no longer "vague".  

Indeed, the judge "did not specify" what/why your arguement was vague.  Indeed, his reasons and bases for denial were vague.  

Go for it.  

Edited July 13, 2022 by broncovet

[Mr cue]

2 hours ago, broncovet said:

This sounds like a judges decision, not a lawyer

This is the VA lawyer at the cavc trying to defend the bva decision on housebound by fact.

2 hours ago, broncovet said:

Remember, the CAVC "is not a trier of fact".  Instead, the board "determines the facts". 

I have fought an won twice at the cavc.

This is my 2nd time at the court over the issue.

This time I  have a very good lawyer.

An this was there response to my lawyer brief.

[broncovet]

It sounds like you are on top of it, so you should likely disregard my advice. as you probably  are right.  However, THIS sounds like a judge, not a lawyer, for example:

Quote

Appellant argues that the Board in its November 23, 2021, decision provided inadequate reasons or bases as to SMC at the housebound rate.  [App. Br. at 2627].  This argument is without merit. 

Sounds like the judge rejected the appellants argument, to me.  You?  It could be like you said, tho, the attorneys who represent VA try to rip your arguments to shreds.  That's normal.  If you say its the lawyers brief..I wont doubt you.  It just sounded like a decision, sounds like the lawyers did a good job at making it sound like a judge.  

Its great you won at the CAVC twice.  Congratulations!  I also have won (a remand, not a reversal) at the CAVC at least twice, both times I was attorney represented.  And, upon remand, I got additional benefits.  EAJA paid most of my lawyer fees.  I did my best to not tick off the lawyers.  They can quit, you know.  I figure if I knew what the attorney knows, then I would be a lawyer.  So, why should I tell the attorney "how to do this". I dont go to the doctor and tell him how to diagnose or treat me, either.  But, when the doc does treat me, I decide if I will comply.  I dont just follow blindly, but, when in doubt, the doctor (or lawyers) advice is better than mine on this issue.  

Many people just dont like being told how to do their job.  I get that.  

 

Edited July 14, 2022 by broncovet

[Mr cue]

Ok back to my post I think all veterans understand when you go to the cavc there are lawyer who are defending the bva decision.

Ok that was there defense of the Howell v Nicholson issue in my case.

Ok here is me and my lawyer reply and now it goes to the judge.

If you look the VA lawyer doesn't address Howell v Nicholson.

Housebound by fact because they can't defend it. Smh.

 

Here is the reply brief.

 

4. The Board provided an inadequate statement of reasons or bases when denying an earlier effective date than May 9, 2018, for SMC based on housebound status under 38 U.S.C. § 1114(s) in its November 23, 2021 decision.  
 
In his opening brief O argued that the Board failed to define the term 
“substantially confined” and did not address the Court’s holding in Howell v. Nicholson, 19 Ve.t App. 535, 540 (2006) when denying an earlier effective date for SMC based on housebound status. App. Br. at 26-27. The Secretary does not dispute the fact that the 
Board did not define the term “substantially confined” or whether O was able to overcome his particular disabilities and leave the house to earn an income. Sec. Br. at 17-
19. Instead, he responds that the Board assigned “the earliest possible effective date for SMC statutory housebound eligibility.” Sec. Br. at 19.  
However, the Secretary ignores the fact that SMC based on housebound criteria can be satisfied by showing either that (1) the veteran has one service connected disability rated as total and additional service connected disabilities rated at 60 percent or more or (2) the veteran is permanently housebound due to his service connected disabilities. 38 U.S.C. § 1114(s). The Secretary’s reliance on the “statutory” eligibility ignores the latter avenue to establish SMC at the housebound rate on a facts found basis.   
The Secretary further argues that O failed to explain how the Board’s failure to define “substantially confined” would result in an earlier effective date for his SMC. Id. However, the Secretary’s position is misplaced because it is premised on the flawed conclusion that a formal claim is required for SMC to be accorded. As stated above and in his opening brief, this Court has held that SMC benefits are to be inferred as part of a claim for increased rating or appeal of an initial rating. Akles, 1 Vet. App. at 121; Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019); Hassan v. McDonough, No. 20-2556 Vet. App. 
LEXIS 460 *5 (March 19, 2021).  
O, acting pro se, has repeatedly argued to the Board that SMC at the housebound rate should have been inferred and accorded in his previous claims and appeals for the proper disability ratings. R-65, 916-24, 932-45, 943-45, 1113-14, 114546, 1290-96. In fact, he expressly argued that his entitlement to SMC at the housebound rate should have been inferred in his earlier claims because the evidence showed he was 
  
substantially confined to his home, i.e. he could not leave his home to earn an income as described in 38 U.S.C. § 1114(s) and Howell, 19 Vet. App. at 540. R-65, 916, 1145-46, 1290-96.  
Yet, the Board found that prior to May 9, 2018, O’s service connected disabilities did not cause him to be housebound because he was able to leave his home on his own for medical and other appointments and went fishing. R-48. However, as noted in O’s opening brief, and as O has repeatedly argued to the Board on multiple occasions, the standard to be granted housebound benefits is not an absolute inability to leave the house, but rather that the veteran cannot leave the house in order to earn an income. Howell, 19 Vet. App. at 540. Stated another way, a veteran can be capable of leaving his or her home to attend medical and other appointments and still be considered substantially confined to his or her home for SMC housebound purposes and the Secretary has not argued otherwis
 

[john999]

VA medical does not make house calls as far as I know.  How are housebound vets supposed to get to C&P exam or medical treatment? How to get to grocery store?  VA just cares about saving money at vet's expense.  It is all about their budget and damn a vet.  VA throws away millions and then denies a vet the proper compensation.