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

[Teac]

broncovet - I'm going to disagree, on the fuzzy math. I agree w/it. They use the "whole" person theory, which I agree with and I think most would, once they understand it. Once you understand it, it makes sense that 50% + 50% = 75% which actually rounds up to 80%. What I have a problem with is once you reach 100% they still use the "fuzzy math" which shouldn't be allowed, as it penalizes the claimant, unfairly. jmo

pr

How does it penalize?

[jbasser]

Start with your initial or original 100 percent rating.

Then add the other ratings using the combined ratings schedule.

For example: 100 percent, then add 30 20 10. These add up real math to 60 percent. The VA only adds these up to 50 percent.

So 60 percent minus 10 percent is 50 and it knocks a vet out of the SMC S criteria. Very similar to paying interest.

J

[Philip Rogers]

Once the claimant becomes 100% the VA (illegally) continues to use the combined ratings table, on additional disabilities when combining for SMC. Once a person is 100% they can't be any higher. 100% is the max. Using the combined ratings table assumes the claimant is 0%, disabled or a whole person, when starting out. Additional disabilities should be added using standard math, not "combining," so you are being penalized, twice.

pr

How does it penalize?

[john999]

Phil

I agree with that since once a vet hits 100% or total he is considered 0% able bodied. For SMC purpose why used combined rating schedule on a vet that is already 0% able. That is just another trick to keep vets from getting money.

[Philip Rogers]

True john and they've been getting away w/it for yrs. The problem is it'll take 6 yrs to get it thru the court, on appeal. Just another way of screwing the vet and hoping we die first. Many accept their decisions and never appeal, which they know, so they win!!!

pr

Phil

I agree with that since once a vet hits 100% or total he is considered 0% able bodied. For SMC purpose why used combined rating schedule on a vet that is already 0% able. That is just another trick to keep vets from getting money.

[Teac]

By that thinking I am 100% plus another 150 ...

I receive A&A at L 1/2 rate but that only takes into consideration a seperate 60% rating.. and nothing for the rest.

What rule if any states they must add and not combine anything over 100%?