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WAC-Vet75

Bradley V Peake? Smc S

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I hope I have a grasp on this, if not, I'm sure someone here will set me straight.

I applied for, and was granted TDIU in 1993. Part of my claim was based on the fact that it took me almost 3 years (1990-1993) to be able to leave my house to even attempt to secure employment. I stated that I was not able to leave my home on my own, and when I did leave my home, I needed to be accompanied. I believe this actually satisfied the requirements for housebound, yet SMC (s) was never considered.

38 U.S.C. § 1114(s) provides that SMC at the (s) rate will be granted if a veteran has a service- connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of a service-connected disability or disabilities. 38 U.S.C. §§ 5110(a), 1114(s); 38 C.F.R. § 3.400(o) - SMC benefits must be granted when a veteran becomes eligible without need for a separate claim, any effective date must be based on that point in time when the evidence first supported an award of SMC, which may be well before the veteran raised this issue.

I was not made aware of any SMC, was never considered for SMC (s), and was granted TDIU, though my disability was the cause of my being housebound.

I am presently waiting for a decision (in the rating board now), for SLE, and Aid and Attendance (SMC L). Since my 1993 TDIU decision, I've been granted SC for MS and conditions as a result of the MS. As it stands, I have my 100% TDIU P&T, and a combined rating of 53% (without the SLE). Though I did not meet the requirement for the 100% plus additional 60%, I believe I met the requirement for housebound back when TDIU was granted.

My TDIU was based on 70% for "nerves" (PTSD), due to trauma experienced in the military. Am I incorrect in my belief that SMC (s) should have been granted in 1993, and that the VA erred in not considering it?

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I hope I have a grasp on this, if not, I'm sure someone here will set me straight.

I applied for, and was granted TDIU in 1993. Part of my claim was based on the fact that it took me almost 3 years (1990-1993) to be able to leave my house to even attempt to secure employment. I stated that I was not able to leave my home on my own, and when I did leave my home, I needed to be accompanied. I believe this actually satisfied the requirements for housebound, yet SMC (s) was never considered.

38 U.S.C. § 1114(s) provides that SMC at the (s) rate will be granted if a veteran has a service- connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of a service-connected disability or disabilities. 38 U.S.C. §§ 5110(a), 1114(s); 38 C.F.R. § 3.400(o) - SMC benefits must be granted when a veteran becomes eligible without need for a separate claim, any effective date must be based on that point in time when the evidence first supported an award of SMC, which may be well before the veteran raised this issue.

I was not made aware of any SMC, was never considered for SMC (s), and was granted TDIU, though my disability was the cause of my being housebound.

I am presently waiting for a decision (in the rating board now), for SLE, and Aid and Attendance (SMC L). Since my 1993 TDIU decision, I've been granted SC for MS and conditions as a result of the MS. As it stands, I have my 100% TDIU P&T, and a combined rating of 53% (without the SLE). Though I did not meet the requirement for the 100% plus additional 60%, I believe I met the requirement for housebound back when TDIU was granted.

My TDIU was based on 70% for "nerves" (PTSD), due to trauma experienced in the military. Am I incorrect in my belief that SMC (s) should have been granted in 1993, and that the VA erred in not considering it?

Hello WAC75,

I recently received a denial of CUE for a Housebound claim based on bradley v Peake....MY claim covers the period Jan 2001 thru Feb 2007. According to the denial I received .. Bradley v Peake does not effect claims prior to this decision. Needless to say I have appealed this because the BVA list a number of claims with retroactive awards that were made based on claims that predate bradley v Peake. Also please understand that the award of TDIU must have been based on one 60% disability that kept you from working ( not a combination of disabilities), together with a seperate 60% rating. So if I understand you correctly and based on what you stated I don't think you could win a claim under Bradley v Peake....

I am not sure that you should have been awarded housebound based on actual need either, since actual need is not addressed by bradley v peake it wouldn't fall under that decision.

My understanding to show actual need you must first have a 100% rating.. (TDIU meets this requirement under bradley v peake , but again it does not address actual need) and because you do not have an actual 100% schedular rating I do not think you can get an award based on actual need.

I hope that I am wrong, and I hope others raise their voices and express their opinions as this is a very important topic that needs some discussion....

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Hello WAC75,

I recently received a denial of CUE for a Housebound claim based on bradley v Peake....MY claim covers the period Jan 2001 thru Feb 2007. According to the denial I received .. Bradley v Peake does not effect claims prior to this decision. Needless to say I have appealed this because the BVA list a number of claims with retroactive awards that were made based on claims that predate bradley v Peake. Also please understand that the award of TDIU must have been based on one 60% disability that kept you from working ( not a combination of disabilities), together with a seperate 60% rating. So if I understand you correctly and based on what you stated I don't think you could win a claim under Bradley v Peake....

I am not sure that you should have been awarded housebound based on actual need either, since actual need is not addressed by bradley v peake it wouldn't fall under that decision.

My understanding to show actual need you must first have a 100% rating.. (TDIU meets this requirement under bradley v peake , but again it does not address actual need) and because you do not have an actual 100% schedular rating I do not think you can get an award based on actual need.

I hope that I am wrong, and I hope others raise their voices and express their opinions as this is a very important topic that needs some discussion....

My PTSD was rated at 70% (not combined), which was used to fulfill the requirement for TDIU. I'm sorry if my original post did not make that clear. I have other disabilities, that combine to an additional 53%. I am waiting on a rating for SLE, and Aid and Attendance.

I am going on the contention 38 U.S.C. § 1114(s) states:

(s) If the veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more,

or, <a name="s_2"> (2) by reason of such veteran’s service-connected disability or disabilities, is permanently housebound, then the monthly compensation shall be $2,993. For the purpose of this subsection, the requirement of “permanently housebound” will be considered to have been met when the veteran is substantially confined to such veteran’s house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout such veteran’s lifetime.

I may be wrong, but the use of the word "or" relieves the need for the additional 60%.

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I think you qualified for SMC "S" based on being housebound. I think you should file a claim for "S" from the time you were awarded 70% given the facts of your case. I think the VA should have inferred HB. You are going to have a fight on your hands, but if you don't file you will never get. I would try and find a lawyer to help me with this because the VA is going to fight this. They are going to bring up the old standard of having to be 100% schedular. They will say Bradley V Peake does not apply. I don't think this is a slam/dunk.

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I would like to agree with John, but I can't. Housebound based on the actual need is only awarded if you are rated 100% schedular. Housebound under bradley v peake is only awarded if you have a TDIU for one condition ( which you do) and an additional and seperate 60% rating which you say you do not. Otherwise you would need a 100% schedular rating and an additional seperate 60% rating.

A&A is only payable if you can show the actual need and you are rated 100% schedular . I know some will want to argue that 100% is not required but that would not be true.

Direct from the VBN 2010 , The regulation governing A&A does not specifically require that a veteran be suffering from a disability rated at 100 percent.... however it is obvious that a greater degree of disability is required for entitlement to A&A than for housebound benefits since the veteran must demonstrate that he or she needs the aid of another to accomplish the tasks associated with daily living.

I sincerely hope that your claim for SLE (don't know what SLE is) is granted and that you are awarded enought to at least get the statutory housebound rate, otherwise I see a fight for actual housebound. And unless you somohow receive a

100% schedular rating you will not be awarded A&A.

Best of luck to you....

Edited by Teac

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