CAVC–Buie (5) v. Shinseki (0) (2011)


VetCourtAppealsPromoNow here is a case that is worthy of a panel. We are seeing more and more hilarious and comical decisions and orders handed down that are mundane and/or run of the mill. It can’t be that justice has been clarified like butter and needs no more work. And then along comes a case like this. It is novel in many respects. The most salient is the way the BVA and by extension, the General Counsel try to turn everything into a timeline wherein the Vet ends up on the wrong side of it.  Consider the following enigma (in VA’s mind).

Mr. James E. Buie was a groundpounder from 12/65 to 6/67 including Vietnam. He didn’t fair very well over there, but more about that later. He applied for, and was granted, a 10% disability for his low back condition in 1971. In late 1995 he applied for an increase and let VA know he was receiving 100% Social security as he was unable to work since 1974. As usual, the VA promptly handed him an 8940 IU form to fill out. Wonder of wonders. He was denied. In early 1997, Mr. Buie tried yet again to reopen his back claim. This time the RO found the exact same thing (no evidence of prerequisites for 20%), but strangely upped his rating to 20% anyway in July. He persisted in August and said his injuries had gotten worse during the course of the claim that year. 8 months later in March of 1998 the RO granted him a 40% rating. A month later, in April and again in May, Mr. Buie busted out the magic typewriter that was his new money machine and petitioned VA again- this time for a 60% rating on his back.

The RO dawdled for an incredible 18 months before finally refusing to increase to 60% in October of 1999. Mr. Buie promptly filed his NOD in November along with another 8940 for IU. Mr. Buie was finally getting the hang of this game. The RO almost immediately (in VA time) issued a SOC  continuing the 60% denial in January 2000 and dragged its collective feet until November of 2000 to issue a denial of the TDIU request. Mr. Buie at this point could see the writing on the wall and lawyered up. His new legal pony was none other than the illustrious Kenneth Carpenter of Topeka fame. Mr. Carpenter promptly filed an NOD for the denial of the IU in December of 2000.

The immediate result of lawyering up was that the RO rethought its 60% denial and caved in six months later in July of 2001. They also threw in the TDIU and basically conceded total defeat. That wasn’t good enough for Mr. Buie. He filed new NODs for the effective dates of his 60% and IU respectively.  In for a penny. In for a pound, right?

 As if this wasn’t an interesting case already, another of his claims came to fruition in May of 2004. This was in the form of 30% for PTSD effective May 1998, which was upped to 70% effective 2001. Mr. Buie was starting to realize his investment in Mr. Carpenter was probably the smartest thing he’d ever done. The reader has to realize at this point that they haven’t even left the RO to visit Washington, D.C. on appeal yet.

 Finally in May of 2008, after a game of Ping Pong between the Court and the BVA, the BVA agreed on a date of April, 1998 for his award of 60% and the IU.  

Now, if you’ve followed this crooked path with a stick drawing and a timeline flow chart up to here, the claim takes another turn. Mr. Buie has now been granted an IU (100%) rating as of 4/1998 based on 60% (back). He has also been granted 70% for PTSD as of 1/2001. Relying on Bradley v. Peake (2008), he argues for SMC (S) for a ripping $325 extra per month back to 2001, which is when he qualified.  The Secretary choked and said Agh! No way, dude. Mr. Buie’s argument was a little shaky. Because the VA argued that Mr. Buie’s TDIU consisted of multiple ratings to attain TDIU, it didn’t meet the requirement of §1114 (S). It finally boiled down to a definition of TDIU being a rating and not a condition ! You can see the Secretary’s point. He sees a 60% rating bumped to 100%, but when the 70% shows up, he wants to supplant the TDIU rating back to a 60% and then add the 70% to make it 100% combined. With this scenario, there is no extra 60% above 100% which is the SMC S qualifier. Mr. Buie, through his Topeka mouthpiece, seeks to substitute the 70% as the underlying rating and make it IU plus 60 % for the back from 2001. This yields the SMC S and the extra three and a quarter per month. The Court agreed:

 That is not the end of the matter, however.  The Secretary is also incorrect in asserting that this analysis means that Mr. Buie is necessarily ineligible for special monthly compensation under section 1114(s).  There is no language in either the statute or the regulation that relates to timing or suggests that the relevant disabilities must be awarded in a particular order. See 38 U.C.S. § 1114(s); 38 C.F.R. § 3.350(i).  The Court envisions a scenario in which a veteran receives a total disability rating based on individual unemployability that is based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the  basis  for  an  award  of  a total  disability rating  based on individual  unemployability.  In this scenario, if the order in which the veteran received the awards for his disabilities was determinative, he would not be eligible to receive special monthly compensation. However, if the veteran had been awarded service connection for these disabilities in the reverse order, he would be eligible to receive special monthly compensation. There is no evidence to suggest that Congress intended such an absurd result, and nothing in the plain language of the statute or the regulation requires it.

Buie v. Shinseki (2011)

Awesome, huh. This must have made the VASEC apoplectic. But wait. Here’s the punchline:

 

Therefore, the Court holds that the order in which disabilities are service connected is not relevant to VA’s determination of a claimant’s eligibility for special monthly compensation under section 1114(s). Whenever a veteran has a total disability rating, schedular or extraschedular, based on multiple disabilities and the veteran is subsequently awarded service connection for any additional disability or disabilities, VA’s duty to maximize benefits requires VA to assess all of the claimant’s disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to special monthly compensation under section 1114(s).  If, after such an assessment, VA determines that the claimant is entitled to special monthly compensation, the effective date of the award of special monthly compensation will be the effective date assigned  for the award  of  benefits  for the  final  disability that  forms the  relevant combination of disabilities.  In this case, there is evidence in the record to suggest that Mr. Buie may be eligible for a total disability rating for individual unemployability based on his service-connected post-traumatic stress disorder alone.  Buie (supra).

This is one of those situations where it just didn’t pay to get out of bed, trundle down to Indiana Ave. NW and tangle with the Court. Mr. Buie won everything he set out to obtain. Mr. Carpenter’s phone will be ringing off the hook for years to come with breathless Vets desirous of his services. The Secretary retreated to Vermont Ave. and tried to recover from his wounds. The poor man must have been born under a bad sign or has incredibly bad karma.  April 26th dawned with the dogwoods in full bloom. I know. I was born there and I have a valid birth certificate to prove it.   Several hours later the Court kicked in the Secretary’s teeth and told him he no longer had plenipotentiary powers over the selection of fiduciaries for Vets. The eons-old practice of total strangers nicking Vets for $90/month to manage their affairs had finally come to an end. But that is another story for another day.

      This is Mr. Buie’s day and we wish him the best.  A big  Attaboy is due Mr. Carpenter as well.  The community of Vets salutes you for your unswerving devotion to Mr. Buie and our cause, sir. 

     Read about how Mr. Buie goes 5 and 0 with the Big Guy:

http://www.uscourts.cavc.gov/documents/Buie_08-2705_opinion_with_errata_April_2011.pdf

   Letters of Condolence may be mailed to the Secretary c/o BVA at:

810 Vermont Ave. NW

Washington, D.C. 20420

 P.S. One thing a lot of VSOs and attorneys stub their toe on is the specific language of SMC S in 38 CFR3.350 (i). Note that it specifies the initial qualifier for SMC S is ” a single disability”. If you arrive with TDIU based on a package of disabilities that add up to the 70% required to qualify for 4.16, then you have not met the single disability codicil. 

I’m on the bottom right in camo with no stripes, no USAF and no nametag. I traveled light back then.

About asknod

VA claims blogger
This entry was posted in Important CAVC/COVA Ruling, TDIU and tagged , , , , , , , , , , , . Bookmark the permalink.

2 Responses to CAVC–Buie (5) v. Shinseki (0) (2011)

  1. Al says:

    I’m 100% schedular P&T. Will an SMC-S compensation be additional to my P&T compensation? Or will it be the difference between the two? Example: P&T comp, plus SMC-S comp. Or SMC-S comp minus P&T comp.

    • asknod says:

      SMC is in addition to anything you receive such as your 100%. Thus, If you are rated as SMC S, your paycheck (married/0 rugrats) goes from $3068.90 to $3415.74. If you have any SMC K ratings, they are $103.23 each on top of this.

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