1

Special Monthly Pension -

Housebound

Impact of Recent Federal

Circuit Court Case:

Chandler v. Shinseki

© NVLSP 2013

2

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.

© NVLSP 2013

3

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

© NVLSP 2013

4

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.

© NVLSP 2013

5

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.

© NVLSP 2013

6

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

© NVLSP 2013

7

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!

© NVLSP 2013

8

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

9

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

10

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.

© NVLSP 2013

11

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.”

© NVLSP 2013

12

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.

© NVLSP 2013

13

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

© NVLSP 2013

14

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

© NVLSP 2013

15

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%

© NVLSP 2013

16

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)

© NVLSP 2013

17

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

© NVLSP 2013

18

CAVC decision

CAVC therefore concluded that the

veteran was entitled to SMP under

1521(e), pursuant to the interpretation

of 1513(a) in Hartness

© NVLSP 2013

19

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.

© NVLSP 2013

20

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.”

© NVLSP 2013

21

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.

© NVLSP 2013

22

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

© NVLSP 2013

23

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

© NVLSP 2013

24

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).

© NVLSP 2013

25

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)

© NVLSP 2013

26

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.”

© NVLSP 2013

27

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.

© NVLSP 2013

28

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.

© NVLSP 2013

29

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.

© NVLSP 2013

30

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

© NVLSP 2013

31

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

© NVLSP 2013

32

Questions?

© NVLSP 2013