I was contacted by a Vet seeking to readjudicate an old award pre-Bradley that entailed the same or similar circumstances. To review, Bradley was awarded TDIU for one, single disability as the predicate for the total disability rating. Nevertheless, he had additional ratings that added up to 60% (or more) which ostensibly entitled him to VA’s Special Monthly Compensation ‘S’ worth about $300+ back then. He took Kenny the Carpenter up to the Fed. Circus and finally made VA read 38 USC §1114(s) exactly as it was written-not the way Dr. Peake insisted it was intended. Jim Buie did much the same and refined it further by adding up his disabilities not in the order received, but in the amount of percentages. Once one rating was granted at totally disabling (100% schedular), he merely moved the old, less-than 100% TDIU rating over into the SMC column to attain his SMC-S. VA doesn’t cotton to you playing their 3 card Monte game as they do. They fought him long and hard but to no avail.
Importantly, though, I came across a little-known panel decision from 2006 that illuminates another old ploy of VA’s to deny us “substantially housebound” status which I am currently seeking. It, too, was repped by the Kenster. In a nutshell, VA said I was totally disabled (100%) by a secondary disease (Porphyria Cutanea Tarda) yet they low balled me at 10%. After a DRO review, they zeroed out the DC 7815 Porphyria rating and substituted DC 7704 for 40% for phlebotomies. This was clearly and unmistakably erroneous (CUE). A total disability is just that-total. What Diagnostic Code they choose to use is immaterial.
The focus of the argument is twofold. I maintained prior to this that I was “substantially housebound in fact”. I lacked the requisite additional 60% rating or ratings above and beyond the 100% schedular or, in the alternative, a TDIU rating based on one single disability. VA regularly uses an odd means test if you can call it that. Their conceptualization is that if you can make it to the CBOC (community based outpatient clinic) or VAMC without an ambulance, they you must not be very “housebound”. Hell, for all we know, the ambulance is not even a viable excuse. Your mere presence at a VA medical facility argues against the fact that you are at home- ergo you aren’t housebound. Game. Set. Match.
As I gave Rick advice on how to combat what I felt was an interesting point of law worthy of review for error, my research led me to Howell v. Nicholson. There I found the argument to defeat these idiotic straw man inventions VA used in 2009 to defeat my request for SMC-S based on a purely “substantially housebound ” reading.
Read this on page 7:
B. Permanently Housebound Status – 38 U.S.C. § 1114(s)
SMC-HB benefits will be paid to a veteran who, “by reason of such veteran’s service-connected disability or disabilities, is permanently housebound.” 38 U.S.C. § 1114(s); see also 38 C.F.R. § 3.350(i)(2). The term “permanently housebound” is further defined as being “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 the veteran’s lifetime.” Id. The term “substantially confined” is not defined by statute or regulation. See id.
The Howell court decided to define what ‘substantially’ finally meant here and this was in 2006. You will find that this didn’t percolate down to the VA judicial branch at the OGC or VBA level. It may have but I doubt they take any of this seriously until called out numerous times.
This is the stuff legends are made of. First, the Secretary (or what was to become the later DVA) insists on one broad interpretation of what “substantially confined” is and then
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.
Having synthesized the essence of the interpretation, the Court proceeds to apply the coup d’ grace on the Veterans Law Judge.
Accordingly, we hold that leaving one’s house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined for purposes of SMC-HB benefits, and the Board’s interpretation of section 1114(s) to preclude the grant of SMC benefits on the basis of Mr. Howell’s leaving his house in order to attend VA medical appointments was erroneous as a matter of law.
That, fellow Veterans, is your can opener when you get hit with something like this. I have read numerous decisions that cite to the fact that the Veteran was able to attend his/her appointments and thus was free to move about the country.
The holding is well-cited and will stand you in good stead when they try to pull the blinders over your eyes. Always remember, Veterans. VA doesn’t know the law any better than your VSO or you. They make stuff up and run with it. If you are lucky enough to catch it or have an astute rainmaker who does, you will prevail. I can’t count how many Vets have come to me over the years and try to quote law to me to show why they lost. If 67% of all VA decisions are overturned, remanded, vacated or set aside for error or incorrect reasons and bases at the CAVC, then the smart money says appeal it. What is remarkable is that only a small number of Vets do so. Go figure.