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Cue Of A Denial Of Smc, Based On A Tdiu Rating Prior To Bradley V Peake,

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I know the following is a long discussion of Bradley v peake some of which has been discussed over and over, but in the final analysis, I think there is a valid way to claim cue based on the laws in effect at the time of the denials. If you want to skip the legal crap go down to the final two pargraphs. ( but you might miss some important stuff by skipping )

For those that are attempting to justify an SMC rating based on a TDIU rating prior to Bradley V Peake, and for those who are trying to justify a TDIU and 100% rating held at the same time. I submit the following. I am not a lawyer. This is just my opinion based on my readings.

In a February 2, 1994 General counsel Opinion Precedent 2-94, Paragraph 7 specifically states the following:

7. Although it is not in the question before us, we also find nothing in the language of section 1114(s) to indicate that Congress meant to exclude service-connected disabilities rated as total under 38 CFR $4.16, i.e., a total rating based on individual unemployability. Where statutory language does not establish a condition to its application, such a condition may not be construed unless a straight forward application of the language as written would violate or affect the clear purpose of the enactment. The clear purpose of public law no. 86-663 was to create a rate of compensation intermediate to the rates for veterans so disabled as to warrant a higher rate of special monthly compensation under 38 USC $114 …….

In a 7 June 1999, General counsel Opinion Precedence 6-99, HELD:

a. A claim for total disability based on Individual unemployability for a particular service-connected disability may not be considered where a scheduler 100-percent rating is already in effect for another service-connected disability.

b. No additional monetary benefit would be available in the hypothetical case of a veteran having one service connected disability rated 100-percent disabling under the rating schedule and another, separate disability rated totally disabling due to individual unemployability under 38 CFR $4.16(a).

Note: after the 7 June 1999 GCO Precedence 6-99 was written, the February 2, 1994 Opinion was not revoked.

In Bradley V. Peake, it was stated and decided:

1. In this instance, the procedural history associated with the secretary’s implementing regulation 38 CFR $3.350(i)(1994), demonstrates that the secretary’s regulation authorizes a TDIU rating to fulfill the statutory total rating requirement. Initially, the Secretary’s implementing regulation expressly prohibited a rating based upon TDIU from satisfying the “total” requirement of section 1114(s). However, based on a 1994 VA General Counsel Opinion that section 1114(s) did not authorize this restriction , see VA General Counsel Precedence 2-94, the secretary promptly changed the regulation – by dropping the restrictive language, see 60 Fed. Reg. 12,888 ( Mar 9, 1995). When making this change, the secretary also noted that “ the plain and unambiguous language of 38 USC $1114(s) does not restrict the nature of total rating that may be used as a basis for entitlement to the rate of special monthly compensation which section 1114(s) authorizes.”

With the omission of the restrictive language the regulation authorized a TDIU rating to serve as a basis for establishing a total rating under section 1114(s). ( 9th Cir 1991 held the following in Town & country nursing) “As a general canon of statutory construction where the final version of a statute deletes language contained in an earlier draft, a court may presume that the earlier draft is inconsistent with the ultimate congressional intentions.” And this regulation has not been changed since the March 1995 amendment. In as much as section 1114(s) does not exclude TDIU from satisfying the “total” rating requirements therein, the Secretary‘s change to regulation $3.350(i) authorizing the use of TDIU to satisfy the “total” rating requirement of section 1114(s) is a plausible and reasonable interpretation of the statute and this regulation is entitled to substantial deference.(Livesay v Principi 15 Vet.App. 165, 172 (2001)(en banc) (“The court will sustain the regulation that is consistent with the language of the statute and is a plausible interpretation of the law.”)

The secretary argues that several years after $3.350(i) was changed by VA General Counsel issued a new opinion in 1999 to the effect that section 1114(s) excluded TDIU as a basis for establishing a total rating under that section. See VA Gen Counsel Opinion 6-99 June 1999. The secretary further notes the board relied on this opinion. Although the board is required to follow general counsel opinions the court is not. Rather the court reviews the law de novo.

Moreover we believe that the secretary’s interpretation of the General counsel’s 1999 opinion – excluding TDIU as a basis for a total rating - is too expensive, and, so read, conflicts with the VA General counsel’s 1994 opinion, our interpretation of the statute, and the secretary’s current regulation.

NOTE: Upon the Bradley v Peake decision the general counsels Opinion 6-99 from June 7, 1999 was revoked

Point of this exercise:

1. Bradley v Peake caused General Counsel Opinion 6-99 dated June 7, 1999 to be revoked.

Ironically, this opinion was generated to consider a claim of total disability based on TDIU where a scheduler (100%) total disability was in effective. This opinion was very widely based in that it sought to define issues that were outside the original question. It came about as a result of a denial of a veterans claim for a rating of total disability due to PTSD and determined that a TDIU rating based on all service-connected disabilities was not for consideration. The BVA found that the plain meaning of 38 CFR $ 4.16 (a) dictated that, because the veteran already had a 100% rating, it could not consider a claim for TDIU. The COVA found, however that the language of the regulation is equally susceptible to a contrary interpretation and that “nothing in the regulation address whether the “scheduler rating” refers to the discrete rating or rather to the combined rating.” The claim was remanded to address the perceived ambiguity in the regulation in light of the case law and to address what, if any benefit the veteran could obtain if the veteran had a 100-percent rating for a heart condition and a TDIU rating for PTSD.

1. As we all know now the opinion indicated a veteran could not benefit by having a TDIU and a 100% rating because no additional monetary benefit would be available. Since this GCO was revoked all of the opinions expressed within no longer hold the power of law.

2. General Counsel Opinion 6-99 was in direct conflict with the governing statute, and the secretary’s current regulations as well as the Secretary’s General Counsel Opinion 2-94. Once challenged in a court of law it could not stand because of the conflicts. The BVA however had no choice but to follow the opinion even though it was in conflict. The court however reviews the law De novo, i.e. As if it were decided for the first time, and is not bound by the General Counsel’s opinions. This would still be the law of the land if Bradley had not fought this injustice all the way to the Federal Court of Appeals.

3. My interest here is that since the opinion was revoked, all opinions to do with a TDIU rating and a chance of a 100% rating being held at the same time is moot. Further this decision discussed the consideration of a TDIU rating once a 100% rating was in place. In never discussed a situation where a TDIU rating was in place for one condition and a veteran is then rated 100% for another condition.

4. for those of us who were denied the SMC prior to Bradley v Peake…..

a. If you claimed CUE based a rating that was decided prior to Bradley v peak and it was denied because “it was determined to be an interpretation of the law and not a legislative change, (as stated in my denial)….this itself is also CUE since General Counsel Opinion Precedent 2-94 states otherwise, and has never been revoked. Since two separate general counsel opinions were in effective at the same time 2-94, and 6-99 and they were in direct conflict of each other, the veteran should have either received the benefit of the doubt or the VA should have decided which GCO was correct. Keeping in mind the separate counsel opinions were likely generated by two different lawyers and are the opinion of one lawyer, not the courts. Also remember the 6-99 was in direct conflict with the regulations. I submit had the VA done due diligence to begin with there would have been no need for Bradley v Peake.

b. So when claiming CUE due to a claim decided prior to Bradley v Peake and the denial of SMC Housebound, I recommend the veteran cite General Counsel Opinion 2-94 dated Feb 2, 1994 as the control authority as well as the statue and regulation that covers SMC’s which have been in place since March 1995.

ADDED: also Bradley v peake indicated; SMC Benefits are to be accorded when a veteran becomes eligible without a seperate claim. Accordingly any effective date must be based on that point and time when the evidence first supported an award of SMC.

So... any denial stating SMC was never claimed would be wrong, since the va is required to consider SMC's when deciding all claims to compensation.

Edited by Teac
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Thanks for all that Teac- I will devour it all as soon as I have time. I love legal stuff.

I copied here my 2008 I-9 Appeal to the BVA for my CUE claims.It never went to the BVA. It might help someone here with a CUE that VA has denied.

"I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR."

"None of my legal evidence,

to include the

VACO Medical Report of 1997,

General Counsel Precedent Opinion. Op # 30-97 ,

4 BVA citations regarding interpretation of legal standing of Section 1151 and SMC,

a letter from CHAMPVA,and

M21-1 Part IV March 18,2003 Change date Erratum under 3.09 and 3.10 ,and

a quote from NVLSP’s VBM 2007 edition page 543 re: 38 USC 5121 and 38 CFR 3.100(a) –

all as listed and contained with my DRO request form dated September 12th 2007 for these 2 CUE claims, were acknowledged by the VA. Instead the DRO, Ms. XXXXX used the evidence that I submitted solely for my Agent Orange death claim to include my 2 IMOs from Dr. Craig C. Bash even though the BVA received and remanded this Agent Orange claim and it’s specific evidence and the IMOs back to the RO in September 2006 where it remains, with my medical evidence still unacknowledged and unread as of this date regarding that specific claim filed in February 2003.

I have yet to receive a legal VCAA letter on that claim and have had no response on this specific claim since the September 2006 remand from the BVA.

My June 2004 De Novo request was for the CUE claim that I had filed on July 14,2004 regarding lack of SMC consideration and accrued award. My Sept 17th 2004 CUE claim regarded the lack of any diagnostic code or rating on the veteran’s significant Section 1151 fatal heart disease.

The veteran’s fatal heart disease is a medical fact established by the VACO in 1997.Dr. Craig C. Bash’s IMos have nothing to do with this established medical fact.They are in support of the initial, and still pending Agent Orange death claim I filed in early 2003."

(my note-that 2003 AO claim was awarded in 2010,by the BVA and the CUE claims were awarded in Jan 2012 by Phila VARO.

(There were 2 CUE claims-one awarded under 1151 ( VA caused CVA),and since the AO regs had changed since filing the CUE on IHD ,they awarded that under Nehmer in January. One never knows during the long claims process when a sudden a new regulation will alter a pending claim)

I guess my point here is if any CUE claim under Bradley is prepared, as you stated:

it must be 'based on the laws in effect at the time of the denials',

the medical evidence at time of the denials must have been in VA's possession and/or clearly established by the record already,

and ANY VA case law or reg in affect at time of alledged CUE, can be used in support of the claim.

Thinking my CUE would have gone to BVA, I used their interretations in those BVA cases I cited because I knew the BVA would read them, since the VARO ignored everything.

The letters I received from 2004 to 2012 from the VARO of jurisdiction were absolutely ridiculous and even shameful-

revealing a complete lack of VA 101 and the basic tenets of SMC.

I shaped all of my responses to the Buffalo VARO , geared towards the BVA's eventual decisin but that never happened because Nehmer Phila RO got it right.

I feel that every claim should be shaped with the possible that eventually that a BVA lawyer will read our stuff.

One other point. I read CUE claims at the BVA when time permits and the BVA often makes the point that a CUE 'claim' is not ,in essence a claim at all.

It is a Collateral Attack.

My responses to the 7 years of VA crapola on my denials were worded strongly with confidence in the regs that backed me up.

I would copy each statement of the SOC and then type

WRONG !!!!!

and then tell them why.

BVA would have loved it.But they never saw my CUE claim.sad.png

Edited by carlie
resized to enable reading

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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