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

[kamaka57]

Berta,

Your prayers are answered. Sample template for SMC (S) benefits is listed below:

************************************************************************

Request this veteran be awarded SMC (S) for Housebound Benefits effective _________________ . On this date, this veteran’s SC disability ratings were:

. _____________ – TDIU

. _____________ - ___%

. _____________ - ___%

. _____________ - ___%

. _____________ - ___ %

Accordingly, this veteran was entitled to Housebound benefits by statute (without demonstrating need) on this date per Bradley vs. Peake, where the CAVC ruled:

- “Section 1114(s) does not limit ‘a service-connected disability rated as total’ to only a schedular rating of 100 percent—it includes a disability that supports TDIU.

- 38 C.F.R. § 3.103(a) - If the veteran is monetarily advantaged by having just one service-connected condition support a total TDIU rating and the veteran has other

service-connected conditions that combine to 60 percent, the VA is obligated to rate the case to maximize the benefits that can be paid to the veteran. The VA is

obligated to render a decision which grants every benefit that can be supported in law.

- 38 U.S.C. §§ 5110(a), 1114(s); 38 C.F.R. § 3.400(o) - SMC benefits must be granted when a veteran becomes eligible without need for a separate claim, any effective date

must be based on that point in time when the evidence first supported an award of SMC, which may be well before the veteran raised this issue.”

Request de Novo review for this claim.

***************************************************************************

Hopefully, this template will help many vets obtain their deserved SMC (S) benefits. Happy Holidays.

[Teac]

The question remains...

Will Bradley v Peake allow for retroactive claims ? Who can say ? The VA illegally withheld the SMC Housebound from hundreds, if not thousands of veterans because of their in-house illegal ruling. The VA will argue that just because Bradley won his case does not mean the ruling makes it retroactive for all veterans. The va is not above the law, and should not be allowed to retain funds that rightfully belong to veterans.

I have submitted my cue, it is going to be interesting how the va rules on my claim and others.

[jbasser]

•Because SMC benefits must be granted when a veteran becomes eligible without need for a separate claim[3], any effective date must be based on that point in time when the evidence first supported an award of SMC, which may be well before the veteran raised this issue. See 38 U.S.C. §§ 5110(a), 1114(s); 38 C.F.R. § 3.400(o).

This is the most important part. You dont have to file for SMC S. The VA is supposed to consider it and this ties their hands.

J

[Teac]

•Because SMC benefits must be granted when a veteran becomes eligible without need for a separate claim[3], any effective date must be based on that point in time when the evidence first supported an award of SMC, which may be well before the veteran raised this issue. See 38 U.S.C. §§ 5110(a), 1114(s); 38 C.F.R. § 3.400(o).

This is the most important part. You dont have to file for SMC S. The VA is supposed to consider it and this ties their hands.

J

Thanks for the references gave me the opportunity to review them using my new NVLSP Federal Benefis laws and regs 2009 manual. Yes it should tie their hands, but will it?

[jbasser]

If they dont appeal it to a higher court and get the decision overturned.

I am afraid that is their plan.

J

[Berta]

jbasser is correct and he stated it exactly like it is-

SMC is a Statutory benefit-

mandated in M21-1 as an "inferred issue" when the medical evidence warrants SMC consideration.

This is why I am fighting so hard over my SMC CUE claims.

If VA does not infer SMC and consider a vet for it (when the medical evidence before them would warrant SMC Consideration)- the VA has committed a CUE.

If VA does consider SMC but denies it- the vet can appeal with a NOD telling them how the established medical evidence warrants proper SMC award.

The VA in my past paperwork stated that "the veteran was not eligible under any circumstance for SMC consideration."

He was at least 300% SC when he died as well as Housebound.

They refuse to make any SMC determination at all due to my recent AO award for accrued benefits purposes.

Perhapos the VACO Nehmer review will straighten that out.