tdiu John999 And Those Who Understand Cue

[Teac]

John, I noticed you won your claim for Housebound under cue... Could you tell me.. what was the date of your inital claim were the va did not award Housebound, and what was the date they finally awarded it... You also said the va called CUE on itself..?

I am asking this because I just received a denial on my CUE claim stating :

The decision to not grant entitlement ot special monthly compensation based on housebound is not considered to have been clearly and unmistakably erroneous because the decision was properly based on the available evidence of record at the time and the rules then in effect. Bradley v Peake decided Nov 26,2008 was determined to be an interpretation of the law and not a legislative change. Therefore entitlement is based on the date the benefit is claimed following that decision.

The dates that I am claiming for housebound benefits are August 14, 2001 thru 31 January 2007. Because these are the dates that I was rated TDIU for my back injury, and 60% for my lung condition,. On 31 Jan 2007, TDIU was revoked and I was awarded 100% for my Lungs.

While I have done a lot of research to determine if the BVA granted SMC to other Veterans on claims that existed prior to the Bradley v Peake ( NOv 2008) and I have discovered that the BVA has in fact granted some claims... I was wondering about the dates of you claim.

I have already submittted my NOD but I am interested in hearing about your case, and for that matter anyone else who cares to chime in and offer a comment concering the denial under CUE.

I am having a hard time understanding how the VA can admit that they misinterpretated the law, and some how that is not CUE. We all know that ignorance of any law is not a defense...

[Berta]

Right-I thought I made that point before to you Teac -sorry f I didn't.

Bradley opened the door for filing for SMC claims under CUE.

There has been considerable discussion here on Bradley.Since this decision came out. Lots of good info.

"While I have done a lot of research to determine if the BVA granted SMC to other Veterans on claims that existed prior to the Bradley v Peake ( NOv 2008) and I have discovered that the BVA has in fact granted some claims..."

Yes and even as Accrued SMC to widows. (as my claim is for this under CUE too)

But those BVA vets didnt have to rely n Bradley.

And when my claim for SMC Accrued became a Nehmer issue- it doesnt have to be considered a CUE anymore (but I am hoping for CUE decision)

If the VA had evidence to award SMC and they didnt-in a past denied decision that is a CUE. Regardless of Bradley or not.

Bradley only re-interated what the regs have always said..A BIG only for vets who this decision affected however.

Let me say that a better LEGAL way-

If the VA did not Consider any vet for SMC in a past denied and unappealed decision- it is the Lack of Consideration of the Mandate of SMC as an INFERRED issue that makes it a clear and unmistakable LEGAL error (CUE)

I posted stuff on all that at hadit recently.

I used 38 USC,38 CFR and specific parts of M21-1, a few BVA decisions as to Legal interpretations and one or two General COunsel Pres Ops for my CUE.

Lack of consideration in defiance of the 38 USC 1114 regs and the mandate is a CUE.

There was much discussion at VA WAtchdog too on Bradley- the old Watchdog site is still up for the archives.

Edited February 4, 2011 by Berta

[john999]

Teac

I was awarded an extra 60% on my existing TDIU award based on a July 2008 award. I did not ask for a CUE. I just asked for the "S" they owed me since July, 2008. The VA called it a CUE. As Berta says it was an in inferred issue so by not awarding "S" the VA made a CUE. I was not supposed to have had to request "S". Bradley cleared up the issue of TDIU being equal to a 100% schedular award regarding "S". This is how I understand it. TDIU and Schedular were always equal in that sense, but the VA was misinterpreting the regulations to suit themselves and thus save money.

[Teac]

Teac

I was awarded an extra 60% on my existing TDIU award based on a July 2008 award. I did not ask for a CUE. I just asked for the "S" they owed me since July, 2008. The VA called it a CUE. As Berta says it was an in inferred issue so by not awarding "S" the VA made a CUE. I was not supposed to have had to request "S". Bradley cleared up the issue of TDIU being equal to a 100% schedular award regarding "S". This is how I understand it. TDIU and Schedular were always equal in that sense, but the VA was misinterpreting the regulations to suit themselves and thus save money.

Thanks for the reply. While I have done some in depth research on this subject, and learned the BVA is awarding claims under Bradley v Peake, on claims that pre-dated bradley, Out of all the cases I found none of them refer to CUE as the basis to award. I do agree that the courts did not change the law, but made clear the issue.

On another cite there was much discussion on this subject, A Prior Veteran Employee states that there will be very few if any claims granted on CUE. He argues that because ratings were based on the laws at the time the older claims were made there is no cue. I don't think that is true since the law was not actually changed. My claim for Housebound under bradley v Peake was denied using the phrase .. "you case was decided based on the record and rules in effect at that time". And goes on to state that only claims dated after the Bradley v Peake decision will be considered for Housebound...

It is refreshing and adds hope that since the VA called CUE on itself in you case, that I still have a chance at the De Novo review or BVA level to win my claim.

I see Berta also agrees that CUE is also the way to pursue this issue. I think what it will come down to how a rater feels about the issue, and some will and other will not award the claim on CUE...... almost like anytting else the va does..