tdiu More Research Bradley V Peake

[Teac]

For further discussion........

I disagree with the argument that Bradley v Peake does not apply to claims prior to the decision dated 26 Nov 2008. First while it was an interpretation of the law, it did not change the law but in fact clarified it.

Many decisions prior to Bradley V Peake were made using the VA General Counsel opinion dated 7 June 1999, which stated TDIU was excluded as a basis for establishing a total rating for purposes of section 1114(s). See VA Gen Counsel Prec.6-99 (June 7, 1999). This general counsel opinion’s was in direct conflict with the statues and regulations (concerning the granting of SMC’s) in effect at that time. It was also in direct contradiction with an earlier General Counsel Opinion dated 2 February 1994. See VA Gen Counsel Prec. 2-94 (February 2, 1994).

When the General Counsel’s opinion of 1994 was generated it also caused the regulation to be changed in March 1995. However, when the General Counsel’s opinion of 1999 was generated, the regulations and statues did not change, nor was the General Counsel Opinion of 1994 revoked.

Following the decision in Bradley v Peake, the VA wasted no time revoking the 1999, General Counsel Opinion 6-99. To date, the 1994 General Counsel 2-94 remains in effect.

The VA had two General Counsel Opinions in conflict with each other from June 7, 1999 until the decision of Bradley v Peake November 26, 2008. History shows us the VA never made any attempt to reconcile the two opinions, yet continued to use the later opinion to deny SMC, this even when the governing opinion was also in direct conflict with the statues and regulations in effective at that time.

Finally, SMC Benefits are to be accorded when a veteran becomes eligible without a separate claim. Accordingly any effective date must be based on that point and time when the evidence first supported an award of SMC not when the issue is first raised.

I cite the following BVA cases for review and consideration. While it is widely known that BVA cases do not set legal precedence, in this instance they do show a pattern of how BVA cases are being decided since the decision of Bradley v Peake.

The following cited BVA cases awarded SMC Housebound with TDIU please take notice of the original date of the claims, and please

note that all of original claims predate the decision of Bradley v Peake.

1. BVA Citation: 0935526, Decision date: 09/21/09, Archive Date: 10/02/09, Docket No: 09-26 705, Original Claim: Dec 2007, Effective date of award: April 2003. In this case not only was SMC awarded but a 100% scheduler award was revoked in favor of the veteran and TDIU was then awarded.

2. BVA Citation: 1139389, Decision date: 10/24/11, Archive date: 11/07/11, Docket No:

08-09 712A, Original Claim: July 2002, Effective date of award: August 1993. This decision changed the effective date of TDIU from Aug 1998 to August 1993, and at the same time awarded SMC Housebound effective August 1993.

3. BVA Citation: 1033260, Decision date: 09/03/10, Archive date: 09/13/10, Docket No: 07-27 887, Original Claim: Mar 2007, Effective date: March 2007. This decision granted SMC based on TDIU.

The following cited BVA cases indicate that even when a 100% scheduler rating is in effect a TDIU may also be awarded.

1. BVA Citation: 1041163, Decision Date: 11/02/10, Archive Date: 11/12/10, Docket No: 07-11-960, Original Claim: July 2006, Effective date: August 2005. In this case, the BVA not only granted an EED for a 100% scheduler rating but also awarded TDIU in light of Bradley v Peake even though the veteran was not eligible for SMC.

2. BVA Citation: 1181320, Decision Date: 05/12/11, Archive Date: 05/17/11, Docket No:

09-44-014, Original claim: March 2008, Effective date: Mar 2005, awarded TDIU in addition to a previously granted rating of 100% scheduler. SMC was not awarded.

3. BVA Citation: 1114885, Decision Date: 04/15/11, Archive date: 04/21/11, Docket No:

98-18 231, Original claim: May 1998, Effective date: May 1998. The board not only awarded TDIU, but also awarded a 100% scheduler rating. SMC was not granted and the remainder of the claim was remanded.

4. BVA Citation: 1113910, Decision date: 04/08/11, Archive date: 04/15/11, Docket No:

07-17 360A, Original Claim: August 2006, Effective date: June 2010, The BVA also awarded a 100% rating in addition to a TDIU. Additional issues were remanded.

5. BVA Citation: 1041838, Decision Date: 11/08/10, Archive Date: 11/18/10, Docket No:

06-36 311, Original Claim: Oct 2004, Effective date: October 2004. The board not only granted TDIU but also awarded a 100% scheduler rating.

6. BVA Citation: 1112841, Decision date: 03/31/11, Archive date: 04/07/11, Docket No:

03-25 835, Original Claim: June 2002, Effective date: June 2002. The board granted a 100% rating, and remanded TDIU and additional claims stating in light of Bradley v Peake, indicated it might benefit the veteran to retain the TDIU rating even where a 100 percent rating has also been granted.

The following two cases cited Bradley v Peake, stating: “The Bradley case, however is distinguishable from the instant case in that in Bradley, the court found that a TDIU rating was warranted in addition to a scheduler 100% evaluation where TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no “duplicate counting of disabilities.”

1. BVA Citation: 1112757, Decision date: 03/31/11, Archive date: 04/07/11, Docket No: 08-23 234A, Original claim: 2007, TDIU was dismissed.

2. BVA Citation: 1143230, Decision date: 11/25/11, Archive date: 12/06/11, Docket No: 08-27 969, Original date: Jan 2008, TDIU was dismissed.

Edited March 22, 2012 by Teac

[john999]

I had to file a claim to get my SMC since I was total plus 60% since 2008. The VA had no intention of ever granting me SMC. They rung it up as a CUE at the VARO so they were saying is was an error not to grant it to me as soon as I was eligible. I think they are bluffing when they say you can't get retro for total plus 60% to get "S". Someone will probably have to go back to court if they can live that long.

[Teac]

Someone will probably have to go back to court if they can live that long.

And that someone may be me, since they denied my claim once and it has been 15 months since I submitted my NOD and still no statement of the case or decision de novo......... But I am not giving up... never have...never will

[Berta]

Superb research!!!!!!

[jbasser]

Teac, I want to thank you for putting the time and research into this. It shows you have a passion for Veterans.

Well Done.

Basser.

[broncovet]

I agree, Teac..great research.

I will also comment that the VA regurarly uses "arbritrary" dates to make things effective. A good example of this is shreddergate. In shreddergate, the VA put out a memo that if a Vets docs were shredded between the dates of Nov 2007 through Feb 09 then

the Veteran was entitled to special handling. (or similar dates).

Get what is going on here: The VA, when caught illegally shredding Vets evidence, limits the Dates the Veteran can receive special handling. Are they kidding? Shredding Vets evidence was illegeal before Nov, 2007, and it is still illegal today.

I actaully got a call from the VA where they told me I was not eligible for "special handling" because my shredded evidence was before the applicable period!!!

My BS alarms went off, and continue ringing. One of the aspects of CUE is to get rid of decisions that are "arbritrary or capricious".

Here is an example:

http://www.bva.va.gov/docs/VLR_VOL3/5-Berry-StandardsOofTheStandardsOfReviewPages263-283.pdf where it states:

(a) In any action brought under this chapter

[38 U.S.C. §§ 7251 et seq.], the Court of Appeals

for Veterans Claims, to the extent necessary to its

decision and when presented, shall–

(1) decide all relevant questions of law, interpret

constitutional, statutory, and regulatory provisions,

and determine the meaning or applicability of the

terms of an action of the Secretary;

(2) compel action of the Secretary unlawfully

withheld or unreasonably delayed;

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Pierce v. Underwood, 487 U.S. 552, 558 (1988).265

STANDARDS OF THE STANDARDS OF REVIEW

(3) hold unlawful and set aside decision,

findings (other than those described in clause

(4) of this subsection), conclusions, rules,

and regulations issued or adopted by the

Secretary, the Board of Veterans’ Appeals, or

the Chairman of the Board found to be–

(A) arbitrary, capricious, an abuse

of discretion, or otherwise not in

accordance with law;

(B) contrary to constitutional right,

power, privilege, or immunity;

© in excess of statutory jurisdiction,

authority, or limitations, or in violation

of a statutory right; or

(D) without observance of procedure

required by law; and

(4) in the case of a finding of material fact

adverse to the claimant made in reaching

a decision in a case before the Department

[of Veterans Affairs] with respect to benefits

under laws administered by the Secretary, hold

unlawful and set aside or reverse such finding if

the finding is clearly erroneous.

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