More Bradley Vs Peake

[vaf]

"The court also ruled that when a claimant is awarded 100% schedular the issue of TDIU becomes moot."

Please provide a citation, which Court case is it to which you are referring?

In Acosta v. Principi, the Court pointed out that the considerations for TDIU and schedular ratings are different and if a schedular rating should be reduced for some reason, the IU could conceivably remain in place, so the benefits are not strictly congruent. The decision stated:

“Furthermore, the Court has previously concluded that schedular and extraschedular

rating-increase claims are not necessarily "inextricably intertwined" with TDIU rating

claims predicated on the same condition. Colayong v. West, 12 Vet. App. 524, 537 (1999).

Taking this into consideration along with the benefits that come with a 100% schedular

rating that are not available under a TDIU-rating, it is evident that the award of a TDIU rating

does not moot a claim for a 100% schedular rating.”

And I would argue, vice versa.

Also, you said, "I'm sure you're already aware that CUE doesn't happen until the 1 yr appeal period has expired. The failure of the VA to consider SMC (ie:HB), when awarding 100% schedular, does not reach the level of CUE."

Akles said that the veteran does not need to file a formal claim for SMC(s), that the VA's responsibility when the evidence implies that SMC(s) may be appropriate is to consider it without the veteran having to ask for it. That means that any effective date would be the date that the evidence became available to the VA. If I've got that right, then when would the one-year "appeal" period you refer to start and end? I'm arguing a CUE because in my husband's case, the evidence became available to the VA in 2007, well over a year ago, but I really didn't think this was a factor, in view of Akles.

Edited November 7, 2010 by vaf

[Philip Rogers]

vaf - I'm not really sure but I believe it was COVA/CAVC, but it may have just been a BVA case. I don't remember the case or citation but I believe it involved a TDIU claimant who wanted an upgrade to a 100% because his state offered additional benefits to 100% rated vets. In that case they ruled since the benefit was essentially the same the issue was moot.

The one year deadline starts the day the claimant receives the decision.

pr

[carlie]

Wow..Berta.

Im sure glad your here! You said what I was trying to say WAY BETTER than I could say it.

Just to make sure I got it straight in my head, tho, do you think what you just said applies to BOTH

TDIU and 100% schedular, because both of these are pretty much "inextricably intertwined" the way I see it because if you are 100% schedular, you are almost certainly also unemployable (TDIU). And vice versa.

On this part I would have to disagree 100 percent.

100 % scheduler and IU are two completely different animals.

If not, we wouldn't have so many vets trying to hit the 100 % scheduler mark

so they can continue to be employed and able to earn all they possibly can.

[vaf]

vaf - I'm not really sure but I believe it was COVA/CAVC, but it may have just been a BVA case. I don't remember the case or citation but I believe it involved a TDIU claimant who wanted an upgrade to a 100% because his state offered additional benefits to 100% rated vets. In that case they ruled since the benefit was essentially the same the issue was moot.

The one year deadline starts the day the claimant receives the decision.

pr

This sounds like the proverbial chicken vs. egg and which came first question. I'll explain our situation as an example.

1) The veteran never filed a formal claim at the time the evidence indicated SMC(s) should have been considered.

2) The VA never considered it without a formal claim.

3) After finding out about Court cases Acosta, Bradley and Akles, the veteran asked the VARO to consider it.

4) The VARO denied the "claim" due to what I believe is its refusal to comply with Acosta, Bradley and Akles.

5) The denial came in the form of a letter, not a Rating Decision, and did not contain reasons or bases, nor did it contain information on appeal rights.

6) No VCAA notice was previously issued prior to the the "decision," which also violates provisions of the Veterans Claims Assistance Act.

So, you're saying this isn't yet a CUE and the one year period started running at the time of the "decision" letter that wasn't a formal Rating Decision? That prior to one year, we should instead call it a "grave procedural error?"

If we let the VARO kick this to the Board, it will end up being remanded based on these grave procedural errors. We're trying to have them handled at the agency level that made these errors, so CUE vs. grave procedural error, isn't it the same difference?

[dsgsr]

On this part I would have to disagree 100 percent.

100 % scheduler and IU are two completely different animals.

If not, we wouldn't have so many vets trying to hit the 100 % scheduler mark

so they can continue to be employed and able to earn all they possibly can.

Carlie, in the last part of your statement. Are you saying If I'm 100% scheduler P&T , I can work? also what does Scheduler mean when it is used with 100% P&T?

Thank you,

David

Edited November 7, 2010 by dsgsr

[john999]

If you are 100% for a mental health condition you better not let the VA know you are working. If it is for a physical thing then you can work. The main way the VA evaluates vets on percentage for MH disabilites is "can you work?". If you have PTSD and are working full time above poverty level you are not going to get 100% for PTSD, or any other emotional disorder. Also, consider that most vets who are 100% are also on SSDI.