tdiu More Research Bradley V Peake

[Teac]

Broncovet,

Thanks for the reference, I have printed it out, and am reviewing it now. From the little I have read, it appears to be good informatin for all veterans that are fighting the va because of denials.... I am adding it to my reference library.....

Broncovet,

On review, I see you have hit the nail on the head..... I like to use the term that ignorance of the law is no excuse, and that (expecially when it comes to bradley v peake) just because the va ignored the statues and regulations to support the general counsel's opinion of 1999, does not make it right. The va is not above the law.

To deny CUE claims for housebound using the excuse that the " laws, statues, and regulations in effect at that time" disallowed housebound for those with TDIU. ( the reason for denial in my own case) A denial based on this statement is as " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" as was the original claim denial andas my research has clearly shown.

I firmly believe that we will see more veterans claiming CUE for the very reasons I have outlined above. I don't expect to see the regional offices to award any claim based on CUE, but if they don't I am positive the BVA, or veterans court will.

Edited March 24, 2012 by Teac

[john999]

Teac

I can't understand why they have not granted you "S" since at least 2008 when Bradley was decided. The VA's argument as far as I understand it is that there is no retro on Bradley before 2008. That I don't buy, but it needs to be tested in court. I can see that the VA is never going to grant any money for "S" under Bradley before 2008 at the VARO level until they get the word from the courts. This is just the VA in stall mode. If they can stall for five years a certain percentage of vets are going to die and they save money.

[Teac]

Teac

I can't understand why they have not granted you "S" since at least 2008 when Bradley was decided. The VA's argument as far as I understand it is that there is no retro on Bradley before 2008. That I don't buy, but it needs to be tested in court. I can see that the VA is never going to grant any money for "S" under Bradley before 2008 at the VARO level until they get the word from the courts. This is just the VA in stall mode. If they can stall for five years a certain percentage of vets are going to die and they save money.

John,

Just to clarify, my CUE Claim is for the period August 2001 thru Jan 2007. During that period I was rated TDIU for a 60% back injury and 60% for Asthma. In 2007, my TDIU was revoked and I was rated 100% for asthma/COPD with A&A.

The minute I learned about Bradly v peake I filed my cue claim, but at that time it was a shot in the dark, I really didn't know what I was basing the claim on. It wasn't until after I received the Denial in Jan 2011, that I started to research and get a better understanding of what bradley v peake really means.

As a result I learned that the General counsel's opinion of 1999 was in direct conflict with the statues and regulations in effect during that period. I also learned that it was in conflict with General counsel's opinion of 1994. The fact that two different opinions were in effect at the same time, and that only one of them was in harmony with the laws of that time, is another indication that the VA was derelict in its duty to veterans.

I hope that my research makes it plain to other veterans that the va was totally wrong in this instant, they did not follow the laws, but instead chose a single opinion of some junior lawyer as the basis to deny. I don't expect any regional office to grant a CUE claim, because the regional office must follow the Precidence Opinions of that time, so must the BVA. Now that the opinion has been revoked the BVA as shown by my research is granting claims for housebound that date prior to Bradley v Peake.

I however, have not seen one claim based on CUE decided at the BVA yet. Perhaps this is because none have made it pass the regional office, due to being awarded, or if they have been denied at regional they haven't made it to the BVA yet.

If a cue claim based on Bradley v peake is denied at the BVA, I am confident the courts will grant the claim because the court is not obligated to follow general counsel opinions. I however don't want to wait five or ten years to have my claim decided when it is apparent that I should prevail at the regional office.

I used my reasearch as evidence to show that CUE does exist in the initial decison. I posted it for others because I am confident that it is valid and could help others...

Edited March 24, 2012 by Teac

[Philip Rogers]

Teac - I think you've got a valid claim and will most likely win. However I do believe it needs to go to the court, unless the BVA concedes, which they may do at the last moment. jmo

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