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Bva Grants Tdiu And 100% Rating Effective Same Day For Same Conditon

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Teac

Question

http://www.va.gov/ve...es2/1118320.txt

I thought I was seeing things.. but here it is in black in white....

ORDER

The assignment of an effective date of March 10, 2005, is granted for the assignment of a 100 percent evaluation for PTSD, subject to the law and regulations governing payment of monetary benefits.

Entitlement to a TDIU is granted effective date of March 10, 2005, subject to the law and regulations governing payment of monetary benefits.

One is a fluke you say...Ok how about another one? Same condition granted TDIu and 100% rating

http://www.va.gov/ve...es2/1114885.txt

Ok two isn't enough to convince you how about this one:

http://www.va.gov/ve...es2/1112841.txt

Where the BVA states:

The record raises the issue of entitlement to TDIU. In this case, the TDIU claim has not been developed for Board review and is remanded in accordance with the Court's holding in Rice, supra.

While a 100 percent schedular rating has been granted above, this rating does not preclude a simultaneous TDIU rating. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court rejected VA's rationale for concluding that a 100 percent schedular rating must subsume a TDIU rating. The Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. Because of this holding, VA's General Counsel has taken action to withdraw VA O.G.C. Prec. Op. No. 6-99, which is contrary to the holding of Bradley.

Ok how about a fouth case: http://www.va.gov/ve...es2/1113910.txt

And this one I am not even sure I understand why he was rated tdiu and 100% because no grant of SMC was awarded.

Ok one more because I think I have made my point...

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp10/Files6/1041838.txt

there are so many cases of TDIu and 100% being awarded at the same time manly because of bradley v peake....

I found over 10 such cases and ironically, this was not the intended purpose of my research

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WOW, Fabulous research Teac!!!!

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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  • HadIt.com Elder

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Great Research!!! ~Wings

USAF 1980-1986, 70% SC PTSD, 100% TDIU (P&T)

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  • HadIt.com Elder

I think that the Court decision established an effective date for claims already in the hopper.

Veterans deserve real choice for their health care.

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I think that the Court decision established an effective date for claims already in the hopper.

That may be however.... The BVA is awarding claims under bradley v peake for claims that were originated as far back as 1993 from what I have found. My claim was back to 1991 and it was denied at regional saying Bradley v peake doesn't apply to claims that originated prior to the Bradly 2008 decision. The BVA as I indicated here are not only awarding 100% schedular and TDIU on the same claims for the same medical issue, but are also awarding the SMC Housebound in some cases, and in other cases remanding back to regional offices for consideraton of TDIU and the SMC because the veteran lost TDIU in place of a 100% rating and was no longer eligible for the SMC.

It seems to me that with all the different decisions that even the BVA is unsure of what Bradley v Peake really means.. because as much as I hate to admit it .. The decison does not state that an award of TDIU and 100% schedular for the same condition at the same time is allowed,. In fact some decisons I read said specifically it was not allowed.

Some decisions also state if the 100% and the TDIU are for differrent conditions then that is allowed: I quote from one" The Bradley case, however is distinguishable from the instant case in that in Bradley, the court found that a TDIU rating was waranted in additon to a schedular 100% evaluation where TDIU had been granted for a disability other than the disability for which a 100% rating was in effect. Under those circumstance, there was no "duplicate counting of disabilities". ( BVA Citation : 1112757, decision date 03/31/11, docke No: 08-23 234A from a claim with an original award date of 2007)

In a couple of the cases that I read the effective date goes back 10 years from the date of the claim. The rule is SMC is to be awarded when a veteran is found to be eligible without a seperate claim, according any effective date must be based on that point and time when the evidence first supported the award of SMC, not when the issue is first raise.

While the BVA is awarding claims that originated prior to the Bradley v Peake date, the Houston region office is not , and it is likely that other region offices are not either. Sometimes I think that they all do what they darn well pease and to hell with the statues, reguulations and laws that are in place.

Edited by Teac
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