special monthly pension - housebound · 3 introduction there are 2 types of smp. housebound...
TRANSCRIPT
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Special Monthly Pension -
Housebound
Impact of Recent Federal
Circuit Court Case:
Chandler v. Shinseki
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Introduction
Special Monthly Pension (SMP) is
awarded when the vet’s disability level
exceeds permanent and total (P&T)
disability or when other criteria are
met.
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Introduction
There are 2 types of SMP. Housebound benefits (HB) - awarded when VA
determines that a vet who has already been determined to be disabled, is now also permanently housebound (essentially confined to his/her home).
A&A - If VA determines that a vet, who has entitlement to pension, needs the regular aid and attendance of another person, that vet is entitled to the second type of SMP
A permanent need for A&A is not required for a grant of A&A
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Introduction
The VA does not require a claimant to
complete a specific form to apply for SMP.
To support a claim for SMP, it is advised that the
vet’s private physician complete VA Form 21-
2680, Examination For Housebound Status Or
Permanent Need For Regular Aid And
Attendance
The advocate need only notify the VA that
the client is seeking entitlement to SMP.
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Introduction
If possible, advocates are advised to submit a private physician’s statement in support of SMP claims (such as VA Form 21-2680).
In addition to a diagnosis, the private med statement should provide a private doc’s opinion about whether the vet suffers: Incapacity, physical or mental,
which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. the claimant can leave home without assistance,
walk unaided,
feed himself/herself & keep clean; or
whether the claimant is blind, bedridden, or incontinent.
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Introduction
There are two general ways for vet to prove entitlement to HB benefits.
1st - vet has a single perm disability rated as total (100% disabling) under the VA rating schedule & the veteran is substantially confined to his/her dwelling (and the immediate premises)
2nd - vet has a single perm disability rated as total (100% disabling) with add’l disability or disabilities independently rated at 60% or more, entitlement to SMP HB benefits is established whether or not the vet is actually housebound
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Introduction
The requirements for entitlement to SMP HB benefits differs from those for SMC HB benefits.
For entitlement to SMC HB benefits, entitlement to TDIU will meet the requirement for a single SC disability rated as 100% disabling. See also Bradley v. Peake 22 Vet. App. 280 (2008) More on this later!
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Introduction
Until the April 2012 Federal Circuit decision
in Chandler v. Shinseki, vets age 65 or older
had an add’l path to obtain SMP benefits at
the HB rate.
In the CAVC decision, by virtue of age, a
claimant 65 or older would be presumed to
be P&T disabled.
This meant that vets age 65 or older did not
need a single perm disability rated 100%
disabling because that req was met due to age. © NVLSP 2013
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Introduction
The other reqs still had to be met (a
claimant must either be subst confined to
the home and immediate premises or have
addt’l indep. ratable disability or disabilities
rated 60% disabling).
However, the Federal Circuit’s recent
decision changed that framework,
While a vet can no longer obtain SMP benefits
by virtue of age to satisfy the “total disability”
requirement, the traditional path is still valid © NVLSP 2013
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Hartness
In Hartness v. Nicholson, the CAVC
ruled that under §1513, a wartime vet
may be awarded HB benefits if:
Vet is 65 years old, AND
Rated at least 60% disabled OR
Is considered permanently HB.
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Hartness
The VA’s reasoning focused on
section 1513(b), which provides that
“[i]f a veteran is eligible for a pension
under both this section and section
1521 of this title, pension shall be paid
to the veteran only under section 1521
of this title.”
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Hartness
VA’s interpretation of Hartness created arbitrary distinctions among pension claimants and was challenged in Chandler v. Shinseki.
In Chandler, the vet was awarded VA pension at age 57 and had a combined rating of 80%. At age 71 he applied for SMP HB benefits.
The CAVC found the veteran was eligible for SMP HB benefits under §1513.
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Chandler v. Shinseki Facts
1952 – 1956 the vet served on active duty, incl in Korea
The vet had an 80% overall rating, incl 60% for prostate cancer
At age 57, vet granted NSC pension (P&T)
At age 71, vet filed for SMP under 1521(e)
Vet argued that 1513(a) eliminated the req to prove that he has a P&T disability now that he’s over 65 and meets the remaining reqs of 1521(e)
BVA denied stating that 1513 is not applicable given Hartness v. Nicholson
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Chandler v. Shinseki
Vet appealed BVA decision to CAVC
At CAVC, the issue on appeal was
whether the vet, who was receiving
NSC pension, qualified for SMP given
that he was over age 65
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Chandler v. Shinseki
There were 2 statutes involved in the case, 1513 and 1521, and the Hartness decision
Prior to turning 65, vet granted NSC pension under 1521(a) for his disability
Under Hartness, it appeared that vet would qualify for the higher rate of SMP after he turned 65
VA argued that vet was not entitled to SMP under 1513(b) b/c although the vet was P&T disabled, he did not have a single disability rated 100%
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CAVC decision
Per CAVC, the Board erred in:
Determining vet was not entitled to the
application of 1513 and the ruling in
Hartness
Determining vet was required to show a
single permanent disability rated 100%,
in order to receive SMP under 1521(e)
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CAVC decision
CAVC noted that by the time the case
made its way to CAVC, VA had
already determined the vet had a NSC
disability pension because
His disabilities prevented him from
maintaining employment
The vet suffered a disability rated at 60%
The vet is over age 65
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CAVC decision
CAVC therefore concluded that the
veteran was entitled to SMP under
1521(e), pursuant to the interpretation
of 1513(a) in Hartness
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Federal Circuit
Chandler was appealed by the VA to the U.S. Court of Appeals for the Federal Circuit.
In its decision, the Federal Circuit reversed the CAVC’s decision in Chandler, and expressly overturned the earlier decision in Hartness.
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Federal Circuit
The Court found that “Hartness
introduces the possibility of the absurd
result indentified by the Veterans Court
wherein similarly situated veterans are
treated differently under the pension
provisions depending on when they
first started receiving a pension.”
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Federal Circuit
The Court stated:
Vets applying for special monthly
pension benefits under section
1521(e) should be on equal footing
regardless of when they apply for a
pension, i.e., whether the veteran
applies before or after turning sixty-
five years old.
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Federal Circuit
In the meantime, advocates are
advised to
1) to appeal denials of entitlement to
SMP HB benefits if a vet age 65 or older
has a disability evaluated as 60%
disabling, and
2) to encourage vet receiving pension
prior to turning age 65 and with at least a
disability rating of 60%, to apply for SMP
at the HB rate
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Bradley
Unlike Chandler, which was a pension case, Bradley v. Peake was a case that involved SMC – but Bradley can also be applied to SMP
Under Bradley, a vet with either a 100% rating or IU could get to SMC(s) if his other SC conditions combined to a 60% rating
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Bradley
Applying Bradley to SMP, if a vet is P&T disabled based upon one disability, then it is possible to still receive SMP HB benefits, assuming that the veteran is housebound, or has add’l disability or disabilities independently rated at 60% or more.
This interpretation of Bradley has not yet been judicially tested, as it would involve the interplay of Bradley as well as the pertinent reg, 38 C.F.R. § 3.351(d).
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Bradley
BUT assuming P&T disability based upon 1 disability, entitlement to SMP HB does not appear to be precluded by the reg (found at 38 CFR §3.351(d))
However, a relevant M21-1MR provision requires a 100% schedular eval, rather than a TDIU evaluation for pension purposes, which can make things tricky. This requirement for a 100% schedular eval is
also reflected in 38 CFR §3.351(d)
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Advocacy Advice
Manual M21-1MR, Part V, Subpart ii, 3.2.a (last updated Dec. 13, 2005) states:
“Because the single 100 percent NSC disability must be a schedular evaluation, a total evaluation based on unemployability under 38 C.F.R. § 4.17 will not suffice.”
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Advocacy Advice
The M21-1MR provision cited above is inconsistent with the CAVC’s decision in Bradley.
The statute analyzed by Bradley (§1114) is very similar to the statute for pension, Section 1521(e). Both statutes use the words “disability
rated as total.”
§ 1521 adds permanent because pension requires a permanent disability.
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Advocacy Advice
38 CFR §3.351(d) for SMP HB benefits Specifically excludes ratings based on
unemployability AND
Refers to “a single permanent disability rated 100 percent disabiling under the Schedule for Rating Disabilities
The regulation (§3.351(d)) clearly requires SMP HB claims to have one scheduler 100% evaluation. The reg, however, may be unlawful.
The statute does not mention 100% scheduler - it mentions only total disability.
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Advocacy Advice
Nothing in the pension statute, which uses the word “total” could be interpreted to mean only 100% scheduler.
Advocates should apply for HB pension benefits & argue that the VA reg that limits SMP to only scheduler is unlawful This is because a regulation cannot be stricter
than a statute and the interpretation of the words “disability rated as total” by the Bradley decision makes it clear the word “total” means both 100% scheduler and a grant of TDIU.
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Advocacy Advice
Therefore, where the vet has been assigned a TDIU rating for pension purposes based upon a single disability, and has add’l disability or disabilities independently rated at 60% or more – advocates should claim entitlement to HB benefits.
This should include requesting the benefits retroactively or appealing adverse decisions
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Summary Chandler – pension case
A veteran age 65 years or older is considered to be 100% disabled. Previously, if that vet also had a 60% combined rating, he could get SMP. This is no longer available per the recent Fed Circuit decision
Bradley – comp case A veteran with either a 100% rating or IU could get to
SMC(s) if his other SC conditions combined for 60% rating
Argue that Bradley could be applied to pension cases as a route to SMP
Thus, the Federal Circuit decision in Chandler took away one path to SMP, but another path still remains pursuant to Bradley
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Questions?
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