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

[WAC-Vet75]

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%...

Just so I have this straight, you were TDIU since 1999, received 60% in 2001, and they didn't give you SMC S? What were your previous ratings, before the 60% asthma increase?

[Teac]

Just so I have this straight, you were TDIU since 1999, received 60% in 2001, and they didn't give you SMC S? What were your previous ratings, before the 60% asthma increase?

Lets see... Prior to Nov 1999 TDIU award I was rated :

30% asthma

40% DDD ( granted TDIU)

10% R knee torn meniscus with instability (5257)

10% allergic rhinitis

10% sinusitis

After TDIU award : In 2001 I was rated

60% asthma

60% DDD ( with TDIU)

10% right Knee torn meniscus limited motion (5260)

10% right knee torn meniscus instabuility (5257)

10% Hemorriods

10 % allergic rhinitis

0% epididymitis

10% sinusitis

In 2005 add:

10% tinnitis

0% hearing

In 2007 rated 100% for asthma/COPD and TDIU Revoked awarded SMC L 1/2 ( A&A)

In 2008 rated : 30% cataracts secondary to asthma steriod use...(. still under appeal )

Edited May 11, 2011 by Teac

[WAC-Vet75]

What was their reasoning for not awarding SMC S in 2001?

[Teac]

What was their reasoning for not awarding SMC S in 2001?

In 2001 it was not a subject of discussion. I didn't think I qualified because I was TDIU... not 100% schedular....

When I did my CUE claim , received a denial in Jan 2011 stating that it was not CUE as the rule was different prior to Bradley v peake.. however as has been pointed out.. many claims that were denied prior to bradley v peake are now being awarded by the BVA back to the original claim date....I know of eleven different awards at the BVA , when I last looked in Dec 2010

[WAC-Vet75]

In 2001 it was not a subject of discussion. I didn't think I qualified because I was TDIU... not 100% schedular....

When I did my CUE claim , received a denial in Jan 2011 stating that it was not CUE as the rule was different prior to Bradley v peake.. however as has been pointed out.. many claims that were denied prior to bradley v peake are now being awarded by the BVA back to the original claim date....I know of eleven different awards at the BVA , when I last looked in Dec 2010

That's crazy! The regulation didn't change, it's the same regulation, the only difference is, the VAROs were basically ordered to abide by the regulation. The only time in 38 CFR 3.350 that TDIU is mentioned is in respect to an additional 100%. I don't believe that part was added AFTER Bradley, but I would say it probably wasn't, as I can't find such a change. That in itself shows that Congress gave consideration to TDIU being used in SMC.

"(4) Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114"

[Teac]

That's crazy! The regulation didn't change, it's the same regulation, the only difference is, the VAROs were basically ordered to abide by the regulation. The only time in 38 CFR 3.350 that TDIU is mentioned is in respect to an additional 100%. I don't believe that part was added AFTER Bradley, but I would say it probably wasn't, as I can't find such a change. That in itself shows that Congress gave consideration to TDIU being used in SMC.

"(4) Additional independent 100 percent ratings. In addition to the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the intermediate or next higher rate provisions outlined above additional single permanent disability independently ratable at 100 percent apart from any consideration of individual unemployability will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114"

I agree the regulation never changed it was clarified by the courts.... Just months prior to my TDIU award 1n 1999, VA published a directive that stated That those with TDIU do not qualify for the SMC. So VA never considered me for it and in 2001, when I actually qualified for SMC S, I didn't even think about it based on the prior directive published in early 1999.

I get A&A at L 1/2 now, but I wonder since I was ^TDIU for a back injury, and now am 100% for asthma,,, should I not get credit for two total ratings,....and the smc up to "M" ? ... just a though