More Bradley Vs Peake

[Philip Rogers]

I'm going to disagree, here. It's assumed that the claimant is seeking the highest award possible, not the most monetary paying benefit. The 100% award does that by giving the highest award available, thereby making the TDIU issue "moot," period. Sorry, I agree w/the VA. I can't see the court changing that.

pr

My rating when I applied for IU is a big grey area. I actually applied when I first applied for benefits, explaining that, because of SC conditions, I was unable to get a job. So, I guess that means my rating was 0 at that time.

I got my benefits in "steps", which the VA LOVES to do, rather than just award the whole enchilada at once. It seems the Va loves to complicate, and Bradley certainly complicates the VA automatically denying IU as moot, whenever 100% schedular is awarded.

[broncovet]

Pr

So what you are saying is that the highest award possible is NOT equal to the highest monetary benefit? This does not make sense to me. If the Veteran is seeking the highest possible award, would he not be also seeking the highest monies to be paid, or would he be seeking a lower amount?

I think the court recognizes, in part at least that the Veteran applying for benefits is probably not an expert on the ins and outs and many details of the VBA system. All the Vet knows is he is asking for benefits, and he may not even know what terms like, "SMC" , "TDIU", A&A, etc. mean. And he should not have to know either. Should social security beneficiaries be required to master the social security claims system? I can promise you when I applied, I had no idea what these terms meant. Did you? Most of us filled out the forms and relied upon our VSO and the VA to determine to what extent and what benefits we were eligible..and, most of us were, indeed, seeking the greatest MONETARY benefit...it is in rather rare circumstances where we would seek less.

If you went to work at a job, would you expect them to place you at the lowest paying position possible? If they did, you would not likely work there long. Instead, you would want your boss to give you the HIGHEST Paying position to which he felt you were qualified, otherwise, you would be applying at other companies to increase your salary.

Remember the VBA is supposed to be "pro claimant, ex-parte system". Of course, we all know that is not necessarily the case. If it were, then the VA should fire all 400 or so lawyers who represent them against claimants, and instead assign them to Veterans to help Vets obtain the highest benefit possible.

Isnt this what Bradley is about? The Vet applied for benefits, and the Va is required to assume the Vet is ALSO seeking SMC to the highest extent to which the Veteran is eligible.

[broncovet]

Frankly, could you imagine a rater going through this senario:

Ok. This Vet is applying for benefits. Naturally, he is trying to get the lowest benefit possible. This means to forget SMC, forget, TDIU, forget the higher percentages and assume the Vet is seeking a 0% rating..or even less..a denial. In fact, if this Vet is seeking that low of a benefit, why dont I just give him the lowest benefit possible and deny everything! That should make the Vet happy since he is seeking the minimum benefit possible.

I think the laws are clear, instead, that the VA must consider that the Veteran is seeking the highest benefit available which is supported by law....this means 100% plus SMC to the highest level that the evidence supports. The VA isnt supposed to say..well, he should be eligible for SMC but I dont think he really wants all that money.

[vaf]

Yes. it is a CUE. I filed a CUE based on the same circumstances. Husband is rated 100% schedular, one of those ratings is 60%, plus he is rated an additional 70% beyond the 100% schedular rating. Bradley stated that the VA is to rate the veteran in the way that best monetarily benefits the veteran. Acosta stated that 100% schedular ratings do not moot a TDIU claim, and vice versa.

VARO won't consider statutory SMC s because they say 100% schedular ratings moot IU, when it does not.

Know that you'll be denied and will end up appealing it, but get it in the works. You are not alone on this.

[Philip Rogers]

Yes, I guess, that is what I'm saying... Just so you know the BVA lawyers are there to protect the VA. When someone is awarded 100% schedular the VA is required to consider SMC (ie: A&A/Housebound), which they generally deny because the claimant doesn't usually have problems with the "activities of daily living," which they usually quote. Some time ago, the court ruled that the claimant is assumed to be seeking the highest "rating" possible. I don't believe SMC is a rating but is an adjuctant benefit. Hey, go for it, if you want, but I doubt you'll win and if you do I see a long protracted battle. jmo

Your analogy about the employer doesn't make sense, to me. You can't go anywhere other than the VA for benefits. Remember the rules, for the VA, are written by lawyers, mostly to protect the VA. M-21, etc, gives directions and the process is spelled out exactly. Why else would the VA deny TDIU, explaining 4.16(a), in their denial, but not 4.16(b), if not to mislead the claimant. Again, jmo!

Good luck!!! I hope you win but I just don't see it.

pr

Pr

So what you are saying is that the highest award possible is NOT equal to the highest monetary benefit? This does not make sense to me. If the Veteran is seeking the highest possible award, would he not be also seeking the highest monies to be paid, or would he be seeking a lower amount?

I think the court recognizes, in part at least that the Veteran applying for benefits is probably not an expert on the ins and outs and many details of the VBA system. All the Vet knows is he is asking for benefits, and he may not even know what terms like, "SMC" , "TDIU", A&A, etc. mean. And he should not have to know either. Should social security beneficiaries be required to master the social security claims system? I can promise you when I applied, I had no idea what these terms meant. Did you? Most of us filled out the forms and relied upon our VSO and the VA to determine to what extent and what benefits we were eligible..and, most of us were, indeed, seeking the greatest MONETARY benefit...it is in rather rare circumstances where we would seek less.

If you went to work at a job, would you expect them to place you at the lowest paying position possible? If they did, you would not likely work there long. Instead, you would want your boss to give you the HIGHEST Paying position to which he felt you were qualified, otherwise, you would be applying at other companies to increase your salary.

Remember the VBA is supposed to be "pro claimant, ex-parte system". Of course, we all know that is not necessarily the case. If it were, then the VA should fire all 400 or so lawyers who represent them against claimants, and instead assign them to Veterans to help Vets obtain the highest benefit possible.

Isnt this what Bradley is about? The Vet applied for benefits, and the Va is required to assume the Vet is ALSO seeking SMC to the highest extent to which the Veteran is eligible.

[Philip Rogers]

What the VA says and does are two different things. When they see you have an absolute winner they lowball you, hoping you'll take the bone they threw your way and accept it. How many vets do accept it???? Rarely does a claimant appeal a TDIU denial when they read 4.16(a). Sad but true. Just look at the questions, we get here, about meeting the minimum requirements. Just think about how many claimants abandon their claims rather than fight the long protracted battle for justified benefits. You know they don't process claims properly. They train the VSO's and tell them to qoute 4.16(a). I'd bet most VSO's don't even know what 38 US Code and 38 CFR are!!! Again, jmo!

pr

Frankly, could you imagine a rater going through this senario:

Ok. This Vet is applying for benefits. Naturally, he is trying to get the lowest benefit possible. This means to forget SMC, forget, TDIU, forget the higher percentages and assume the Vet is seeking a 0% rating..or even less..a denial. In fact, if this Vet is seeking that low of a benefit, why dont I just give him the lowest benefit possible and deny everything! That should make the Vet happy since he is seeking the minimum benefit possible.

I think the laws are clear, instead, that the VA must consider that the Veteran is seeking the highest benefit available which is supported by law....this means 100% plus SMC to the highest level that the evidence supports. The VA isnt supposed to say..well, he should be eligible for SMC but I dont think he really wants all that money.