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

 

[Mr cue]

Yea it's crazy that they don't grant more housebound by fact.

If you ever look at the Howell v Nicholson percendent the bva denied him for the same reason. Smh.

The Congress intended smc s for veterans who can't leave there home to make a income.

To me I feel that veterans should be granted housebound by fact smc s when they are granted tdiu.

We will see what the court got to say 

 

[Mr cue]

Well just need to vent this morning.

I am just lost in the VA lawyer response to my brief and about my effective dates on my issues.

First we all understand. Smc is a inferred issue.

Which mean a veteran shouldn't have to apply for them.

So if they never inferred it and u apply the effective date is the date your record show it should have been inferred.

Not the date you apply 

My case 2001 2009 2012 are all increase rating claims appeals that it was never inferred.

VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114, and can be inferred by the record. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Entitlement to SMC is therefore an inferable issue anytime Veteran is asking for increased benefits. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Here, the Veteran specifically makes entitlement to SMC an issue through the HLR request and NOD filed.

 

well bva VA lawyers all are try to say there is no record of a informal claim. Smh

then say I have never point out a increase rating claims that they should have attached it.

notice they don't say inferred.

an the only effective date I can receive is the date of claim.

 

so now I sit here hoping a cavc judge address my case right an hopefully tell the VA how to adjucated my smc benfits.

4 year 2 time at bva 2nd at the court. 

an everyone is refusing to address my housebound by fact. 

but I really feel good about my case and we will see.

the fight continues.

hope it go to the judge next week. Than I will take a break again.

An get ready for the bva remand and fight. Smh 

 

Edited July 17, 2022 by Mr cue

[pacmanx1]

1 hour ago, Mr cue said:

VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114, and can be inferred by the record. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Entitlement to SMC is therefore an inferable issue anytime Veteran is asking for increased benefits. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Here, the Veteran specifically makes entitlement to SMC an issue through the HLR request and NOD filed.

Yes, going through something a little like this and posted it a month ago or so. The Key, I think is when you filed for an increase and or was granted TDIU, the VA should have inferred SMC S. As stated, the new VA forms and new regulations are bias against veterans by stating that the effective date will be the date of the signed form but based on 38 CFR 3.400 and 38 CFR 3.156 the effective dates are based on facts found. It's been a few months since I looked at all this, but I am slowly but surely getting my evidence together to share with my attorney. I also believe that Buie V. Shinseki is precedent and can be used in your argument.

Buie v. Shinseki, 08-2705(E) (Vet. App. 2011)

United States Court of Appeals for Veterans Claims

Filed: March 23rd, 2011

Precedential Status: Precedential

Citations: None known

Docket Number: 08-2705(E)

Edited July 17, 2022 by pacmanx1

[Mr cue]

Well today my case was assigned to the judge. My case is expidate.

So I feel I might get s decision in 3 weeks or month.

I just hope the judge address my whole case this time and not just remand it back with no instructions. 

This is the 2nd time my case has been at the cavc in 2 years an with the same judge.

Well hope for good results this time around.

 

[Mr cue]

Well can't sleep this cavc case has me all over the place.

I need to vent again. 

Well as I have posted the buffalo ny regional office mess up again.

2003 I appeal a denial of my mental health. It remain  pending in appeal status.

2018 I reapply using my service records I was granted 70% by the bva.

See the appeal from 2003 became final with the 2018 bva decision.

P

Well the va has just told the court that they had no reason to address the effective date.

I can't make this up.

So if the court doesn't address this I will have to do a cue claim to get them to address there error.

Many May not understand the pending claim doctrine.

 basically the VA is good at not addressing issues or leaving issue Open.

This was how I won the 8 year retro tdiu because my appeal from service remaining pending..

Ok I am going back to sleep and try to get this out my mind.lol

[Mr cue]

Well it's the 3rd week of my case been with the judge.

I got a call from my lawyer this weekend saying my case is go back to the bva. It just is what the court tells the VA to address.

I really like the lawyer he calls he try to make me feel comfortable about my case.

He always tell me the VA can't just ingore your statements and pleas.

Well that is easier said than done.

He go the VA must address all favorable evidence and if they don't accept it they must give a reason and base why not.

Lol we all understand this is what most of our appeals are base on.

So I just need to vent this morning I say I will have the judge decision in two more weeks.

I really hate that the court doesn't Grant appeals.

Because I feel I will go back an will be fighting with the VA for more years. Smh.

Just keeping my fingers cross that The court remand it with instructions for the bva to follow this time.

Because this is just crazy.