tdiu Claim Based On Bradley V Peake Denied

[Teac]

Has anyone received a rating or denial for housebound when citing bradley v peake?

I submitted a claim in in Nov 2009. I received a denial on 20 Jan 2011. The denial reads.

Entitlement to Special Monthly compensation based on housebound criteria retroactive to Aug 14, 2001 ( claimed as clear and unmistakable error)

Clear and unmistakable error are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the

time it was made. A determination that there was a clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. Once

a determination is made that there was a clear and unmistakable error in a prior decision that would change the outcome , then that decision must be revisted to conform to what

the decision should have been.

A review of your claims folder shows that you were awarded TDIU based on your service connected back conditon effective May 26, 1999. Your service connected bronchial asthma

with COPD was increaed to 60 percent disabling effective August 14, 2001. This condition was increaed to 100 Percent disabling effective jan 31, 2007, at which time you were also

granted special monthly compensation based on the need of regular aid and attendance.

You filed a claim for earlier entitlement to special monthly compensation based on the decision of the United states Court Appeals Bradley V Peake NO. 06-1854, decided

November 26, 2008, concerning special monthly compensation housebound, This decision is determined to be an interpretation of the law, and not a legislative change.

Therefor, entitlement is based on the date the benefit is claimed following that decision, which in your case was November 16. 2009. Entitlement to special monthly compensation based

on housebound criteria effective August 14, 2001 is moot as you are already entitled to a higher lever of special compensation, which was effective Jan 21, 2007.

The desision to not grant entitlement to special monthly compensaton based on housebound is considered not to have been clearly and unmistakably erronous becaue the decision was

properly based on teh available evidence of record at the time and the rules then in effect.

Having read this decision I have filled a NOD, and requested a De Novo review. I expect it to end up being decided by COVA or even the US Court of Appeals.

First the decision states, " This decision was determined to be an interpretation of the law, and not a legislative change".

I fail to understand how the va can pick and choose which laws they will follow. And when it has been decided that the VA was wrong, they then use the excuse well the case was decided on the law at that time.

It makes no sense because the court said the law did not change, that the va was not applying they law correctly. The VA just said this was not a legislative change.

So since the law never changed the initial decision had to be wrong.

( The line about my having A&A at a later date mooted Housebound is also wrong since the claim is for a period prior to the award of A&A.)

Anyone care to opine....

Edited January 31, 2011 by Teac

[Pete53]

I asked for an earlier effective date on my SMC asking that mine be the date I was granted 100% for Panic Disorder and Agoraphobia and was denied although I have SMC S award now

[Berta]

"A review of your claims folder shows that you were awarded TDIU based on your service connected back conditon effective May 26, 1999. Your service connected bronchial asthma

with COPD was increaed to 60 percent disabling effective August 14, 2001."

That should have warranted the SMC "S" award.

If the VA failed to consider you for SMC S in that decision, that is a clear and unmistakable error-whether they apply Bradley or not.

Bradley only re-defines the fact that TDIU vets are as eligible for SMC consideration as 100% vets are.

It is a BIG decision as to the re definition - but that was the initial basis of Bradley.The status of 100% ers and TDIUers is the same for SMC purposes.

I have similiar CUE pending before the AO people. I will check that and get back here with the regs I used to support that CUE.

I didnt even raie Bradley-as the evidence clearly showed my husband was eligible for SMC consideration in some past decisions.

His AOS total over 300 but they VA said he was "not eligible" for SMC under any circumstance.38 USC 1114 however does not exclude him by name.

In a past post I stated this and it might help someone:

In Chapter 17, Note 261 of the 2010 Edition of the VBM, NVLSP makes this statement referencing the CAVC Bradley decision:

"the effective date of payment for Special Monthly Compensation is not when the issue was specifically raised by the evidence,but when the evidence first suggested a need for this benefit."

This could give a veteran some leeway on any EED for SMC.

Edited January 31, 2011 by Berta

[Berta]

August 14, 2001.

That decision contains the CUE.

I suggest you file right away for a Request for Reconsideration.

Do you have the VBM?

I sent them the whole page 333 of their 2009 edition of the VBM.The 2010 edition expands on SMC as to Bradley but wasn't published yet when I responded to them.

"The VA Adjudication Procedures Manual (M21-1MR) mandates that VA adjudicators consider entitlement to special monthly compensation as an inferred issue. VA rating activities are obligated to consider entitlement to special monthly compensation in all decisions where the medical evidence indicates possible entitlement."

Source 2009 Edition of the Veterans Benefits Manual by National Veterans Legal Services Program.

The key words -which I highlighted to the VA in that statement are MANDATED, INFERRED,and OBLIGATED.

If you dont have the VBM then I suggest getting to M21-1MR and quoting the exact regs as to what the VA should do to satisfy the mandate of SMC consideration and send them a hyperlink as well as print out of the actual regs.

Edited January 31, 2011 by Berta

[john999]

I got SMC "S" as a CUE. I was TDIU effective 2001. I got an award of 60% effective July, 2008 for heart disease secondary to AO/DmII. I got Housebound effective July, 2008. I think you should have gotten "S" when you got the 60% award for COPD. I would sure appeal this denial. I think the VA just does not want to pay all that retro.

[carlie]

"The VA Adjudication Procedures Manual (M21-1MR) mandates that VA adjudicators consider entitlement to special monthly compensation as an inferred issue. VA rating activities are obligated to consider entitlement to special monthly compensation in all decisions where the medical evidence indicates possible entitlement."

Source 2009 Edition of the Veterans Benefits Manual by National Veterans Legal Services Program.

The key words -which I highlighted to the VA in that statement are MANDATED, INFERRED,and OBLIGATED.

Berta,

OHHHHHHHH, how I like those 3 words : -)

[Teac]

You all provide some very good insight..

Berta I have the 2009 VBN Manuals and will look at the pages you mentioned.

My NOD has already been submitted along with a Request for De Novo Review.. I didn't waste any time it went out the next day...