My Nod For Housebound Under Bradley V Peake

[Teac]

I submitted this NOD last jan 2011. I have a CUE claim in the system for Housebound based on Bradley V Peake. I thought I would post the NOD and just get some reaction. It is still pending at the Houson Regional Office.

this is my third try to post it.....

1151housebound.PDF

[carlie]

I submitted this NOD last jan 2011. I have a CUE claim in the system for Housebound based on Bradley V Peake.

I thought I would post the NOD and just get some reaction. It is still pending at the Houson Regional Office.

this is my third try to post it.....

Teac,

Your cue claim for HB - did they DISMISS it as moot without prejudice

or actually deny it ?

[Teac]

Carlie said:

Teac,

Your cue claim for HB - did they DISMISS it as moot without prejudice

or actually deny it ?

Carlie it was denied. see the attached PDF for actual denial.

They did say the claim was moot in the body of the denial, but only because I was already rated A&A. However the claim was for a period prior to the award of A&A.

The cover letter states it was denied.

housebound denial.PDF

Edited March 15, 2012 by Teac

[Berta]

That is the Fast Letter on Bradley V Peake.

You were awarded TDIU back to May 1999, and then 60 % SC for independent disabilities Aug.2001.

If Bradley warranted retro ( and I thought it did, )then VA owes you the S award from May 1999 to Aug 2001.

They used the court decision date as an EED to deny with for Bradley here.

There has been considerable discussion here at hadit and other vet sites on Bradley and retro and yet I am unsure if Bradley provides retro but why not????

I thought we had some Bradley retro vets here.

A Regional office does not have the power to dismiss a CUE without prejudice-only the BVA can do that.

When was the CUE denied?

Have you prepared a NOD specifically on the CUE claim? Or asked them to reconsider or asked for a DRO? I didnt see any dates on the HB decision and dont want to get confused with the other attachment.

If Bradley warranted retro (the BVA might have some cases there on that) then the VA sure committed a CUE in denying you retro S for above time frame.It might be worthwhile to get a lawyer to rep you on the CUE-but I am not sure on the retro factor-----anxious to see how others respond here too.

Teac, the VA tried to confound and confuse my SMC CUE claims for over 7 years.They awarded this past January.

You have to keep them on track on the CUE issue. I had received rendition after rendition of meaningless VA bull crap as they attempted to deny my CUE claim over and over again ,using creative and ridilculous reasons,and I had to keep re stating the very simple CUE issue I had via rebuttal. When it was set for BVA transfer -August 2010, the VARO sent it to Phila under Nehmer instead - so they said -but it never got there until I griped.

A good CUE in most cases only takes a short paragraph to explain their legal error and I faxed my simple CUE statement again to VACO in December as my Nehmer award was intertwined with this pending issue. The VA put my 2 separate CUEs from 2004 into one claim, and the IHD part of the CUE was awarded under AO instead of 1151.Although it was also an 1151 issue.

My husband was 100% SC, not TDIU, and his 1151 disabilities were over 100%.

Bradley wasn't an issue for that but wouldnt it be the same thing?

My CUE warranted an award of SMC S for a 6 year period.Phila VARO had no problems at all understanding it at all but the Buffalo VARO farted around with it for 7 years.

I had a lawyer on it for about 4 weeks but changed my mind on him for personal reasons. A good lawyer might help you avoid more VA BS on this claim, if Bradley warrants retro..................

as the “S” award can become a tidy retro sum.

[Teac]

That is the Fast Letter on Bradley V Peake.

You were awarded TDIU back to May 1999, and then 60 % SC for independent disabilities Aug.2001.

If Bradley warranted retro ( and I thought it did, )then VA owes you the S award from May 1999 to Aug 2001.

I didn't actually get the seperate award of 60% until Aug 2001... 27 months after the TDIU award. And was awarded 100% Jan 2007.. So from Aug 2001 thru Jan 2007 I should have received Housebound per bradley v peake. In Jan 2007 I was also awarded A&A.

They used the court decision date as an EED to deny with for Bradley here.

I agree, but the denial did not even address the actual dates from AUG 2001 thru Jan 2007, instead it was denied because I have been receiving A&A since Jan 2007.

There has been considerable discussion here at hadit and other vet sites on Bradley and retro and yet I am unsure if Bradley provides retro but why not????

I thought we had some Bradley retro vets here.

A Regional office does not have the power to dismiss a CUE without prejudice-only the BVA can do that.

When was the CUE denied?

CUE was denied in Jan 2011

Have you prepared a NOD specifically on the CUE claim? Or asked them to reconsider or asked for a DRO? I didnt see any dates on the HB decision and dont want to get confused with the other attachment.

Yes, the attached letter in my initial posting is my NOD and request for DRO review it has been pending since Jan 2011.

If Bradley warranted retro (the BVA might have some cases there on that) then the VA sure committed a CUE in denying you retro S for above time frame.It might be worthwhile to get a lawyer to rep you on the CUE-but I am not sure on the retro factor-----anxious to see how others respond here too.

The BVA has many cases citing Bradley v Peake and awarding retroactive Housebound even when the claim dates were well before Bradley V peake was decided. While BVA Cases are not precidence I did cite a few in my NOD, since then I have found more that I can cite if the DRO decides against me. Many other cases cite bradley v peake even when the veteran is rated 100%, but may be entitled to TDIU if not for the 100% and go on to state to rate as TDIU if the Veteran can qualify for SMC with tdiu and not with 100%. I am confident that BVA will award the SMC retroactively. First BVA considers cases De Novo, and second they are not bound by General Counsel Opinions generated at the lower level.

Berta thanks for your input... I know from reading a lot of your stuff that you have a good insight to these matters....

Edited March 15, 2012 by Teac

[Berta]

Teac,that is a nice comment but believe me I get as confused as anyone on some of the SMC stuff.

Gee I wish I had asked Carrie Weletz ,vet lawyer, something to this affect yesterday as we delved into Bradley and SMC issues briefly at SVR radio.

You have an excellent handle on this stuff in my opinion.

I asked VA for the SMC M level for my husband as he had over 300% in my opinion SC.

But I was using the rating schedule currently-big mistake and had to use the old one and then I could see why they rated him only at 30 for fatal heart disease.

I still am sort of thinking of appealing that IHD rating (because the VA malpractice FTCA matter was awarded for negligence on that issue as well as other issues) which all ultimately became SC

- but

instead I might just file another CUE claim.

I love CUE claims.

I ran it by the NVLSP lawyer checking into my EED and first she didnt get my drift on the idea of a new CUE claim but when I said under Sec 1151 award letter, 1998 she said OH !!!!YEAH!!!!!!!

Then again I have been claimant for 12 of the past 17 years and really am satisfied with my last decision and am very very tired of dealing with VA.

I wrote to VA regarding something I noticed in the decision that NVLSP was quite concerned about too.A medical issue ,not a claim issue. When I hear back from VA on that, I might get angry enough to fight them again.