hypertension Bradley V Peake

[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 May 10, 2011 by Berta

[broncovet]

Berta

I think there is still a rather large gap between how the Regional Offices rate cases and how the BVA/CAVC/Federal courts

rule they should be rated, with the RO's consistently rating them lower.

This "gap" is evident especially with Bradley vs Peake. The RO's appear to have taken the position that very few Vets will be entitled to SMC S under Bradley. At least ONE of the "gaps" was pointed out by WACvet, who interprets the regulations to mean that the 60% can be added, and need not be "combined". Ken Carpenter stayed away from this issue, wisely so, (from his clients point of view) and used the word "combined" not added.

There are other "gaps", too, where the RO's rate lower than the courts, forcing the Veteran to appeal the RO strict interpretations. Another "gap" exists when the Veteran is denied TDIU as being "moot" when he was awarded 100% schedular, when an award of TDIU would NOT be moot if the award made the Veteran entitled to SMC S.

Still another "gap" exists when some raters combine a bunch of disabilities and then rate TDIU, when a single 70% would suffice leaving the other disabilities to count toward SMC S in Bradley.

Here is the root of the problem: The RO's rate too low, and leave it up to the courts to sort it out. This creates unnecessary delays. The solution is to get the RO's up to speed with the courts.

About 70% of the cases reviewed by an appealate body result in the Veteran getting either a remand or an award. This means only 30% of the cases are correctly denied. It also means that Veterans need to appeal..they have a 7 out of 10 chance of being awarded more benefits by appealing.

One HUGE problem is that we dont have enough judges at the CAVC level. While congress has approved two more CAVC judges, Pres Obama has not appointed any.

[john999]

I got "S" being TDIU plus 60% because I fit the profile exactly. I think I was just lucky. I happen to have one disability at 70% IU and another one at 60% that was awarded just after Bradley in 2008. It all seems illogical and murky.

[Teac]

Berta,

This is one of the cases I quoted in my cue claim, needless to say it was denied, and has been on appeal since jan 2011.

[WAC-Vet75]

Teac, is your CUE for the addition of ratings over 100%, as oppose to combined rating?

[Teac]

Teac, is your CUE for the addition of ratings over 100%, as oppose to combined rating?

I was rated 60% for a back injury and was medically retired from civil service so was awarded TDIU 1999, in 2001 my rating for asthma was increased to 60% .. I should have been awarded SMC S . However when I go back and look at my ratings prior to the 60% on the asthma..my additionally ratings added to 70%...

[carlie]

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/v...ins/2009-10.pdf Page 4

Any thoughts?

Berta,

This part really has me turning in circles.

** 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