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]

It is about "interpretation" of the law, where the VARO interprets the law more strictly than the courts. I call it "the gap". Whenever a Veteran falls into "the gap" he has to fight for his benefis in appeal, sometimes for decades. "The gap" needs to be closed, as it favors younger healthier Veterans, because the old, frail, very poor health Vets often do not survive the many years necessary to appeal.

Sometimes there is also "a gap" where the VA interprets the law (in a strict manner, unfavorable to the Veteran), but the courts have not ruled on (the VARO interpretation) yet. Sometimes, several years down the road, a similar appeal does wind its way through the courts and now, there is still another interpretation "gap": Does this new court interpretation apply to Veterans claims already decided? Usually, the answer seems to be "No". The Veteran is expected to appeal his RO decision, in anticipation that the courts will overturn a similar case, or else it becomes final.

[Teac]

It is about "interpretation" of the law, where the VARO interprets the law more strictly than the courts. I call it "the gap". Whenever a Veteran falls into "the gap" he has to fight for his benefis in appeal, sometimes for decades. "The gap" needs to be closed, as it favors younger healthier Veterans, because the old, frail, very poor health Vets often do not survive the many years necessary to appeal.

Sometimes there is also "a gap" where the VA interprets the law (in a strict manner, unfavorable to the Veteran), but the courts have not ruled on (the VARO interpretation) yet. Sometimes, several years down the road, a similar appeal does wind its way through the courts and now, there is still another interpretation "gap": Does this new court interpretation apply to Veterans claims already decided? Usually, the answer seems to be "No". The Veteran is expected to appeal his RO decision, in anticipation that the courts will overturn a similar case, or else it becomes final.

Why make it so complicated?

Either the law allowed SMC S for those on TDIU or it didn't....Less keep it simple for simple minded folks like myself

[Capt.]

Hello All,,,,, I think if all of us can look at any decision made by all of the VARO's it is not just Bradley V Peake but all BVA or higher court rulings that bind the law to be noted. Hence all of the Bradley v Peakes are almost always done by erronous decision that cause a great delay in time for the Veteran. It is only because of those Vets who have decided to file a remand on the VARO and their "poor" decisions whether it is concerning SMC from Bradley V Peake Rulings or any other decisions. It still is playing the game of making the Veteran wait and only a certain number of Vets will figure out the incompetence. I also am using this word because it may be even more of a strategy of the VA to delibretly make these erronous decisions. The reason I make this claim is because it does not just happen to a few Veterans but shows a distinct pattern and the same mistakes turn up over and over and over. If we just do a search on these BVA decisions we see a pattern of these same mistakes. It should be noted that if it was not so then the VARO's would not have such a huge remand on the same issues over and over. Their plan works, its simple and in the long run is protected by any H VAC or S VAC or OIG investigations. The VARO's are literally exempt from correcting themselves. That is why the BVA and the higher courts are being worked to death remanding and remanding.

It is because of so many people here like Berta, Hoppy, John, Carlie, Jbasser, Bronco, and so many others who dig for the nuggets in the M21's and the 38CFRs and of the many court and BVA rulings that keep the pressure on the VARO's. Imagine what it would be like if this site was not here. Think of how many of us Veterans would have slipped thru the VARO's net of deception and errors. I know because I am a product of the VARO's and being caught in the safety net of HADIT and its great and tireless workers. Even though I have not succeeded in a rating and SC. I feel it is now inevitable that I will prevail if I can only last out the time clock of the machinery that has worked against so many of us.

So when we look at the Bradley V Peake and the SMC initial denial problem , we can also see a pattern of deliberate , erronous rulings that come from the VARO's that can only be changed by an appeal to the higher up authorities of BVA or even CAVA and Federal courts. That is if the Veteran can spot it. Which thank God these courts still have people that can read and see the ridiculous rulings of the VARO's.

When we stop and look at it. It just proves that money saved in these decisions of the VARO's is mega dollars from the budget. Unfortunately they divide this up with in awards , bonuses to themselves. That in itself is unbelievable.

Sorry to post so long but Bradley V Peake and the SMC denials are a part of a carefully constructed pie that also has other pieces that also have their problems with decisions that are also erroneous and have to be corrected by the BVA and higher Courts. It still makes me boil to see so many having the same problems with nothing in the future to correct it , ......Except for this site watching their moves and making sure they are held accountable with proper advice on how to fight the decisions of the VARO........Of course also coupled with a healthy attitude of NEVER GIVE UP. GOD BLESS, C.C.

[john999]

Teac

You should have gotten "S" when you got 60% for asthma. You may have to go to court to get it. Somehow and somewhere you should have gotten SMC. Your VARO just does not want to pay that retro. That is all there is to it.

[broncovet]

CC

Thank you for mentioning my name with those others you mentioned. It is an honor to me to be mentioned with those Vets advocates such as Berta, Hoppy, John, Basser, etc. Most of these know far more than I know, but there are a few topics I can help on.

Teac...

Yes, its complicated...the VA loves complicated, and therin lies the problem. Just look at the CFR's. There are hundreds of regulations that are unnecessarily complicated. One example is they make different laws for different era's of VEts. Why? Isnt a Vet, a Vet? Why should a Iraq Vet get any more than a Vietnam Vet? There should be one set of rules that apply to all Vets..we just dont need different rules for different eras of Vets. Another example is fuzzy math. The bottom line is its all about saving money, so they have complex rules to allow some Vets to get benefits while others dont. It is not a particularly fair system. IMHO the present system favors the younger Vets.

[Philip Rogers]

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

CC

Thank you for mentioning my name with those others you mentioned. It is an honor to me to be mentioned with those Vets advocates such as Berta, Hoppy, John, Basser, etc. Most of these know far more than I know, but there are a few topics I can help on.

Teac...

Yes, its complicated...the VA loves complicated, and therin lies the problem. Just look at the CFR's. There are hundreds of regulations that are unnecessarily complicated. One example is they make different laws for different era's of VEts. Why? Isnt a Vet, a Vet? Why should a Iraq Vet get any more than a Vietnam Vet? There should be one set of rules that apply to all Vets..we just dont need different rules for different eras of Vets. Another example is fuzzy math. The bottom line is its all about saving money, so they have complex rules to allow some Vets to get benefits while others dont. It is not a particularly fair system. IMHO the present system favors the younger Vets.