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hypertension Bradley V Peake
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VA different higher normal HBP/HTN for vets 1 2
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Berta
As I have stated before many times- SMC is a complex issue and we had much discussion here on Bradley in the past and recently.
I fully believe the VA snookers vets out of proper SMC consideration and awards that medical evidence would warrant whenever they can.
http://www.va.gov/vetapp09/files4/0935536.txt
This case developed from a Pre Bradley decision.
It suggests to me that,in fact, Bradley can warrant SMC retroactive to the date of the Bradley decision.
Also Bradley invalidates a prior OGC Pres Op, so that too would give potential to getting a retroactive award under Bradley.
It also seems to me that a CUE claim filed on a past unappealed decision could or should warrant a retro SMC award for some veterans.
The Bradley decision can be used to support claims pending after Bradley-or as in this case- it seems to fully support award retroactively as this claim decision predated the CAVC case against former Secretary Peake.
TDIU for SMC must be predicated on a single SC disability.
This case also seems to resolve a situaton that we discussed here in the past-
can additional independent disabilities be added up to over 60% to satisfy the “additional” SC disability requirement and the answer seems to be Yes.
Ken Carpenter,who was this vet's lawyer for this claim, is one of the best vets attorneys around and he skillfully prepared this case,using Bradley to full advantage.
“The United States Court of Appeals for Veterans Claims held
in Bradley v. Peake, 22 Vet. App. 280 (2008) that for
purposes of special monthly compensation the statute did not
limit a service-connected disability rated as total to only a
schedular 100 percent rating and the regulation permitted a
TDIU rating based on a single disability to satisfy the
statutory requirements of a total rating. Thus, in this
case, PTSD is considered a single service-connected
disability rated at 100 percent. The Veteran is also service
connected for hearing loss, rated at 30 percent; diabetes
mellitus, rated at 20 percent; diabetic neuropathy of the
left upper extremity, rated at 20 percent; diabetic
neuropathy of the right upper extremity, rated at 20 percent;
diabetic neuropathy of the left lower extremity, rated at 20
percent; diabetic neuropathy of the right lower extremity,
rated at 20 percent; tinnitus, rated at 10 percent;
hypertension, rated at 10 percent; and malaria and shell
fragment wound residuals, each rated at 0 percent. He has
multiple disabilities rated in combination at 60 percent or
higher separate from his PTSD, and, therefore, the Board
agrees with the Veteran's Attorney that the Veteran meets the
criteria for special monthly compensation under 38 U.S.C.A.
§ 1114(s)(1).”
and:
“The Board notes that the TDIU rating was discontinued
effective April 8, 2003, the date that the Veteran's combined
disability rating increased to 100 percent schedularly.
Therefore, the Veteran currently does not have a TDIU.
However, the Board finds that to deny this claim on the basis
that the Veteran no longer has a disability rated as totally
disabling under 38 C.F.R. § 4.16 would lead to an absurd
result, that result being that he would be entitled to a
higher special monthly compensation rating, as explained
above, so long as his combined rating remained at 90 percent
or less, but would not be entitled to a higher compensation
rating even though one disability still renders him
unemployable and other disabilities have worsened such that a
100 percent combined schedular rating results. The Board
does not believe that the Bradley decision and/or the statute
intended such an absurd result and finds that the Veteran has
a single service-connected disability ratable as totally
disabling based on individual unemployability and additional
disabilities separately ratable at 60 percent.”
Also:
The Court held that the requirement for a single “service-connected disability rated as total”
cannot be satisfied by a combination of disabilities. Multiple service-connected disabilities that
combine to 70 percent or more and establish entitlement to TDIU under 38 C.F.R. § 4.16(a)
cannot be treated as a single “service-connected disability rated as total” for purposes of
entitlement to SMC at the (s) rate.
Based on the Court’s decision in Bradley, entitlement to SMC at the (s) rate will now be granted
for TDIU recipients if the TDIU evaluation was, or can be, predicated upon a single disability
and (1) there exists additional disability or disabilities independently ratable at 60 percent or
more, or (2) the veteran is permanently housebound by reason of a service-connected disability
or disabilities.”
from
http://www.dav.org/veterans/documents/bulletins/2009-10.pdf Page 4
Any thoughts?
Edited by BertaGRADUATE ! Nov 2nd 2007 American Military University !
When thousands of Americans faced annihilation in the 1800s Chief
Osceola's response to his people, the Seminoles, was
simply "They(the US Army)have guns, but so do we."
Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.
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