More Bradley Vs Peake

[Berta]

Just to add

VA is supposed (Per the regs) to consider entitlement to SMC whenever the medical evidence warrants it.

Somewhere here I cited the VBM from NVLSP that indicates ---even when the evidence might "suggest" entitlement.

If a vet is awarded 100% or TDIU, then the decision rating sheet should have rating diagnostic codes and percentages for any and all other disabilities the VA is award of.

It is in the preparation of the rating sheet that the rater could notice if the evidence suggests or warrants consideration of SMC.

Of course if they dont rate the SC (or 1151) disabilities properly or in my husband's case completely leave out a rating for his fatal heart disease- they wont consider SMC.

A point here to remember is that the regs say "consideration" of SMC.

If the evidence warrants "consideration"-and the VA makes no statement that they did in fact "consider"SMC but denied it-then that is a CUE (if the evidence warrants them to "consider" and a proper consideration would have warranted an SMC award.( monetary loss is critical to CUE)

1151 disabilities are as eligible for SMC as direct SC ones.

Edited November 6, 2010 by Berta

[broncovet]

Carlie also made a good point. Us "old Vets" are standing around trying to figure out if we should file papers that could get us a better income (housebound). I know if I were in my right mind, I would have filed a CUE to have Housebound included in my award a long time ago.

I remember filing for benefits the first time, back in 2002. I was made aware I was probably eligible for at least some VA benefits AT LEAST 4 years previous to that. I think the words are "in denial" apply. My state Voc Rehab counselor used the word "unemployable", back in 1998, and I was not sure I knew what that meant. All I knew is that I had mouths to feed and I needed a job, bad. My state voc rehab counselor knew what I was in denial of. Frankly, nobody wanted to hire an old, washed up Vet, way, way, past his prime. I was kind of like Bret Favre who decides to quit the NFL and go back to college and play again, and try to re enter the NFL after another 4 years.

The VA takes advantage of our disabilities, especially mental. Who is going to be able to figure out that Bradley vs Peake entitles us to file a CUE for SMC housebound from that decision? Not many. I still cant figure that out. This is why I need you guys to help me.

Thanks for all of your help.

[broncovet]

Wow..Berta.

Im sure glad your here! You said what I was trying to say WAY BETTER than I could say it.

Just to make sure I got it straight in my head, tho, do you think what you just said applies to BOTH TDIU and 100% schedular, because both of these are pretty much "inextricably intertwined" the way I see it because if you are 100% schedular, you are almost certainly also unemployable (TDIU). And vice versa.

Since the VA denied my TDIU as "moot" because I was awarded 100% schedular, I think they are saying that they are ignoring Bradley, because TDIU is NOT moot if I was eligible for SMC housebound!

I dont know if I said that right, but it is not "moot" to me whether or not I get SMC housebound!

[Philip Rogers]

broncovet - it is possible, but unlikely, the VA may be awarding the 100% to avoid the SMC issue because when they award 100% schedular it takes either A&A, HB or an additional 60% to get the SMC. With TDIU the claimant may be able to qualify for SMC easier. However, once they award 100% schedular I still see the TDIU issue as moot. Also, if you disagreed, w/the 100% award, you had 1 yr to file a NOD, correct?? Good luck!!

pr

Wow..Berta.

Im sure glad your here! You said what I was trying to say WAY BETTER than I could say it.

Just to make sure I got it straight in my head, tho, do you think what you just said applies to BOTH TDIU and 100% schedular, because both of these are pretty much "inextricably intertwined" the way I see it because if you are 100% schedular, you are almost certainly also unemployable (TDIU). And vice versa.

Since the VA denied my TDIU as "moot" because I was awarded 100% schedular, I think they are saying that they are ignoring Bradley, because TDIU is NOT moot if I was eligible for SMC housebound!

I dont know if I said that right, but it is not "moot" to me whether or not I get SMC housebound!

[broncovet]

PR

I timely filed a NOD on the RO decision disputing the effective date. I guess that makes the decision "pending". If the RO ever does a SOC (its been 2 and a half years), I am going to bring up the issue of disagreement with TDIU being "moot" in that, if TDIU were awarded, I would have been automatically eligible for SMC Housebound.

Since some of the people seem to think the failure of the VA to consider the Veteran for SMC housebound is CUE, then it may not matter whether or not I brought up that issue in the NOD.

It seems that once a Vet files a NOD, it pretty much seems to cover all the issues. That is, the VA doesnt seem to be willing to say, "Well, yes, you filed a NOD, but you didnt bring up THAT issue in the NOD so THAT ISSUE became final. I think the claim is either pending or not, final or not, and they dont seperate the issues saying, well, your Depression is final, but your tinnitus is not final because you didnt appeal that issue kind of a thing.

I am pretty sure once the Veteran files a NOD, he can "clarify" the NOD and even include issues he did not include in the original NOD.

I dont think NOD's are "one shot" but you can submit more evidence, or add/subtract issues as you see fit, especially since it often takes 4 or 5 years for the VA to complete an appeal.

[Philip Rogers]

broncovet - I'm sure you're already aware that CUE doesn't happen until the 1 yr appeal period has expired. The failure of the VA to consider SMC (ie:HB), when awarding 100% schedular, does not reach the level of CUE. My understanding of it is that that portion of the claim remains open and would be considered a "grave procedural error." SMC(HB) "is" an inferred issue when a schedular award of 100% is awarded.

There has been a decision, within the past few yrs, by the court that if you had five claims pending and they decided four of them, w/o mentioning the fifth, that the fifth is considered denied, even tho there was no mention of it in the decision. I believe the NVLSP appealed that decision and lost. Additionally, I believe you must be fairly specific in your NOD's these days. True you can add additional evidence but unless you waive RO review, it gets remanded and adds 2-4 more yrs to a claim.

You stated: "It seems that once a Vet files a NOD, it pretty much seems to cover all the issues. That is, the VA doesnt seem to be willing to say, "Well, yes, you filed a NOD, but you didnt bring up THAT issue in the NOD so THAT ISSUE became final. I think the claim is either pending or not, final or not, and they dont seperate the issues saying, well, your Depression is final, but your tinnitus is not final because you didnt appeal that issue kind of a thing." They do separate issues.

The court also ruled that when a claimant is awarded 100% schedular the issue of TDIU becomes moot.

I'm not trying to be difficult, just realistic. Anyway, I wish you the best of luck but I just don't see it happening. jmo

pr

Edited November 7, 2010 by Philip Rogers