Bradley V Peak

[grent]

can some one put a link up to va case bradley v peak

i would like to see the bva denial

then i would like to see the cavc decision

thanks

my computer has trouble finding these at va web site

[Berta]

http://search.uscourts.cavc.gov/isysquery/...7611aa03/1/doc/

sometimes you can find the BVA denial by using key words in the CAVC decision which also might give date of the BVA decision.

[Berta]

Ron Abrams testimony here

states exactly what this important decision means:

http://veterans.house.gov/hearings/Testimo...d%20B.%20Abrams

How many veterans with TDIU and also additional disabilities that fell under 60% criteria were denied SMC?

Remember SMC is an "inferred issue"-it is a statuatiory benefit.

Most vets do not ask for SMC because the VA is supposed to infer SMC entitlement and then see if the veteran fits the SMC criteria.100% (or now as clarified TDIU award ) and other ratings for SC conditions is what should trigger VA to "infer" SMC potential.

This is basis of my 2004 CUE claims.

The VA owes many vets $$$$$$ on this one -if the vets themselves figure that out.

The SMC consideration statement showing they inferred to determine eligibility should be in every award letter for TDIU if the veteran had independent disabilities at 60% or over.

[kamaka57]

can some one put a link up to va case bradley v peak

i would like to see the bva denial

then i would like to see the cavc decision

thanks

my computer has trouble finding these at va web site

[kamaka57]

Here's the data you're looking for:

Badley V Peake – 11/26/2008

Source: http://www.dav.org/veterans/documents/bulletins/2009-10.pdf

Compensation and Pension Service Fast Letter 09-33:

Special Monthly Compensation at the Statutory Housebound Rate

38 U.S.C. § 1114(s) provides that SMC at the (s) rate will be granted if a veteran has a service- connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of a service-connected disability or disabilities. VA’s implementing regulation at 38 C.F.R. § 3.350(i) essentially mirrors the statutory language.

Prior to the CAVC’s decision in Bradley v. Peake, VA excluded a rating of total disability based on individual unemployability (TDIU) as a basis for a grant of SMC at the (s) rate. VA relied upon language in citing VAOPGCPREC 6-99, dated June 7, 1999, in which the General Counsel stated that a TDIU rating takes into account all of a veteran’s service-connected disabilities and that considering a TDIU rating and a schedular rating in determining eligibility for SMC would conflict with the requirement for “additional” disability of 60 percent or more by counting the same disability twice.

On November 26, 2008, the Court, in Bradley v. Peake, disagreed with VA’s interpretation and held that the provisions of section 1114(s) do not limit a “service-connected disability rated as total” to only a schedular 100 percent rating. The Court found the opinion too expansive because it was possible that there would be no duplicate counting of disabilities if a veteran was awarded TDIU based on a single disability and thereafter received disability ratings for other conditions. The Court’s holding allows a TDIU rating to serve as the “total” service-connected disability, if the TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to SMC at the (s) rate.

The Court held that the requirement for a single “service-connected disability rated as total” cannot be satisfied by a combination of disabilities. Multiple service-connected disabilities that combine to 70 percent or more and establish entitlement to TDIU under 38 C.F.R. § 4.16(a) cannot be treated as a single “service-connected disability rated as total” for purposes of entitlement to SMC at the (s) rate.

Based on the Court’s decision in Bradley, entitlement to SMC at the (s) rate will now be granted for TDIU recipients if the TDIU evaluation was, or can be, predicated upon a single disability and (1) there exists additional disability or disabilities independently ratable at 60 percent or more, or (2) the veteran is permanently housebound by reason of a service-connected disability or disabilities.

[Berta]

THANK YOU VERY Much!!!!!

This is an excellent analysis of this decision and I hope this info reaches many many veterans who might be able to get SMC now.

and even retro for it------

I don't know if retro will be determined by the date of the Court's decision or by the medical evidence of TDIU plus 60%???

Hope many chime in here on this.

I bet this would generate many CUE claims. ??????

I will try to prepare a template for that type of claim and post it here.

[kamaka57]

THANK YOU VERY Much!!!!!

This is an excellent analysis of this decision and I hope this info reaches many many veterans who might be able to get SMC now.

and even retro for it------

I don't know if retro will be determined by the date of the Court's decision or by the medical evidence of TDIU plus 60%???

Hope many chime in here on this.

I bet this would generate many CUE claims. ??????

I will try to prepare a template for that type of claim and post it here.