More Bradley Vs Peake

[dsgsr]

Could someone please put up a link to 4.16(a & b) ?

Sorry for the post, I found it. I have a hard time concentrating enough for research.

Thank you,

David

Edited November 5, 2010 by dsgsr

[broncovet]

PR hit the "nail on the head".

The VA has all these regulations and then follows only the ones they choose to follow. It is up to the Veteran to force the VA into regulatory compliance, usually upon appeal.

Tatum vs Shinseki, (CAVC), suggests the VA is required to consider that the Veteran is seeking the max benefit, as the following quote from this case demonstrates:

When a veteran files an increased rating claim, it generally is presumed that he or she is

seeking the maximum benefit allowed by law. See AB v. Brown, 6 Vet.App. 35, 38 (1993)

(presuming that a claimant is seeking the maximum benefits allowed by law and regulation); see also

Bradley v. Peake, 22 Vet.App. 280, 294 (2008) (Secretary required to maximize benefits); 38 C.F.R.

§ 3.103(a) (2009) (noting VA's obligation to "render a decision which grants every benefit that can

be supported in law"). In this instance, in addition to the findings of the Board that there is evidence

of weight gain and that Ms. Tatum suffers from fatigability and mental sluggishness, as discussed

above, the record also contains evidence that she suffers from both muscular weakness and mental

disturbance. See R. at 1101, 1150-51. Despite the fact that a 60% disability rating is warranted upon

a showing of these symptoms (muscular weakness, mental disturbance, and weight gain), and

therefore its application was reasonably raised by the evidence, the Board failed to explain why a

60% disability rating was not warranted. See Beverly v. Nicholson, 19 Vet.App. 394, 405 (2005)

(stating that "the Board is required to adjudicate all issues reasonably raised by a liberal reading of

the appellant's substantive appeal, including all documents and oral testimony in the record prior

to the Board's decision." (citing Brannon v. West, 12 Vet.App. 32, 34 (1998))); Urban v. Principi,

18 Vet.App. 143, 145 (2004) (per curiam) (recognizing the Board's obligation to consider "all

reasonably raised matters regarding the issue on appeal"), aff'd, 128 F. App'x 124 (Fed. Cir. 2005)

(per curiam); Schafrath, supra.

IMHO the "maximum benefit allowed by law" statement does not exclude the Veterans potential eligibility to benefits for SMC, or TDIU as applicable.

[john999]

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.

[broncovet]

Good point, John.

I think that the VA is supposed to specifically address housebound in a decision which awards 100%. Im sure they often due exactly what you suggested: "Duh, we considered housebound, and denied it, but never bothered to write this in the decision, so housebound is "deemed denied", and if the Veteran does not appeal within one year, this sub silentio denial becomes final."

The burden is the Veterans to prove CUE if he does not appeal the 'automatic' denial of housebound, unfortunately.

I dont know if this is CUE or not, but it would sure seem like it to me..if the VA is required to consider housebound, but does not address it in the decision and give a reasons and basis for denial.

[broncovet]

I agree with PR in that the VA "throws you a bone" kinda hoping you wont realize that there was supposed to be meat on that bone also.

Even a 100% rating can be a "lowball"...especially if the VA messes with the effective date, and does not consider SMC, deemed denying it.

[john999]

What all this shows is that if you don't claim it you will never get it from the VA. I have never known them to infer anything in my case.