More Bradley Vs Peake

[deltaj]

I would call them grave procedural errors, rather than CUE's. Something can't be CUE until the decision becomes final, which happens one yr after the decision, if not appealed. CUE in this sense, is a specific term for use in the VA claims process. You can NOD a grave procedural anytime before the one yr appeal time tolls. So yes, that's what I'm saying.

pr

On the subject of grave procedural errors don't forget that Cook v. Principi overruled Hayre v. West. I suggest you read the federal circuit case of 314 F.3d Frank Tetro, III v. Anthony Principi, decided January 3, 2003.

[hawkfire27]

Was the 100% P&T rating for the same disabilities as the IU claim.

What I mean is, were you seeking IU because the disabilities you are service connected for caused you to be IU, if it is then trying to get IU and 100% P&T is like asking for two ratings for the same thing.

100% is 100% unable to work and a bit f**ked up. That is why the monthly payments and benefits are such a jump from 90%.

trying to say you are so disabled you can't work and get 100% and then say again that you can't work because you are disabled pay me more, is going to be a hard sell to the VA. I am not trying to shoot you down, I just hope you are in for a long haul.

If you have a 100% "ratable" disability and a separate 60% "ratable" (not combined) disability then you qualify for statutory housebound. (100+60 rule).

IU is not a ratable disability it is granted due to the circumstances of the veteran, so it can not be either the 100% or the 60% part of a statutory housebound claim.

Again this is just my logic, please don't be offended.

[john999]

If you are totally disabled by either being TDIU or 100% schedular and you have an extra 60% you can get SMC "S".

For instance you get TDIU due to PTSD in 2005. Then you get another 60% for IHD in 2010. You are now eligible for "S" housebound. The same would be if you are 160% schedular. The other situation is that you are actually housebound. I think that in many cases you have to ask for "S". The VA gave it to me as a CUE. If I had never filed for it I never would have got it.

[hawkfire27]

You know the VA is supposed to consider Housebound when a vet gets 100% schedular, but how often does the decision say "We considered and denied "S" due to the fact the vet is not housebound"? I think the VA usually just says nothing unless the vet claims HB and then they will come back and say they considered and rejected it. If you get 100% and the VA never says they considered HB how can you prove they did or didn't consider it? The VA does the same thing with evidence.

Hey John999,

I recently just found this info out, about the 100% and the housebound thing.

My husband has a CUE claim in now for retro back to 1988 for housebound when he got his 100% rating. Hopefully it comes through. We just submitted the claimed as a CUE, based on the fact housebound is an inferred issue and because no decision was ever made on the HB at the time he became 100% then the case for HB is still open. In proving if they considered it or not it appears (or should) appear in the final rating decision for the 100% rating. If it is not included in the decision then it was not considered "considered" because of the VA requirement to notify veterans on any decisions regarding benefits.

No notification = no consideration.

.

[hawkfire27]

If you are totally disabled by either being TDIU or 100% schedular and you have an extra 60% you can get SMC "S".

For instance you get TDIU due to PTSD in 2005. Then you get another 60% for IHD in 2010. You are now eligible for "S" housebound. The same would be if you are 160% schedular. The other situation is that you are actually housebound. I think that in many cases you have to ask for "S". The VA gave it to me as a CUE. If I had never filed for it I never would have got it.

Thanks John999,

I guess I am getting a little confused, wouldn't the extra sixty percent them bring you to 100% P&T with a little left over? It is my understanding that while TDIU pays at the 100% rate it doesn't come with P&T benefits nor is it permanent and is subject to review at teh discretion of the VA.

I guess I interpreted the original post as being that he was already TDIU and then got 100% P&T and then also wanted to keep the TDIU to bring him to 160% so he was eligible for SMC "S". However the VA granted 100% P&T which supercedes TDIU because it is permanant and IU is not. I guess we need a littl emore info too. If it was for a brand new completely different disability that he got the 100% P&T rating then that changes things up a bit. But even if that was the case, wouldn't the vet be getting housebound, because generally you need at least 60% rating to get TDIU in the first place, so they would still have 100+60.

Arrggghhh, I think I am looking a bit too deep into this.

Am I completely off base here??

Edited December 29, 2010 by hawkfire27

[john999]

No, I don't think you are off base. I got TDIU at 70% in 2002 and then got an extra 60% in 2008. I got "S" according to Bradley V Peake. It was a CUE because the VA did not award me "S" in 2008. TDIU means total disability which is what is required plus 60% to get "S". Now if a vet got TDIU and then got an extra percentage that put him at 100% schedular I don't know what the deal would be. Once you get to 70-90% rating it takes a very high extra rating to get 100% schedular. I actually had 80% when I got the extra 60% and it only got me to 90% because of VA math. What I got was 60% of the remaining 20% that was left to me. One thing is the VA is going to hold vets to the letter of the law.

On your CUE claim I think you are right on with that. Your husband should have been considered for "S" when he got 100% schedular for one disability. If the VA did not say they considered and denied it then they did not consider it regardless of what BS story they may tell you later.