tdiu Bradley V. Peake (Statutory Smc (S)

[lotzaspotz]

Hi everyone, I've been gone for awhile. I just maxed out on facing this stuff after 20 years, and just received two Board decisions yesterday for my husband that immediately jarred me back into it. Anyway, I thought I'd share this with anyone who's interested. In late 2010 or early 2011, I filed a claim with the VARO for my husband who is rated 100% schedular, P & T, with one of his ratings being 60%, another being 50%, plus the others that make up the difference to 100% schedular per the combined ratings table, plus above that, he's got a 50% rating for sleep apnea and a 30% rating for bilateral cataracts (=70%). Almost a year later, I received a VCAA notice from the VARO that basically said they refused to process the claim because my husband is not TDIU. No reasons and bases, no evidence list -- nothing -- and yes, they did it via a VCAA notice. I wrote back stating that this was an improper use of the VCAA notice, but that we were interpreting that as a formal denial, and were filing an NOD with evidence, and a Form 9 for the Board appeal. I asked for an SOC and never got one.

Fast forward to yesterday. We received two separate Board decisions dealing with other claims. In one decision, the Board referenced the SMC(s) claim, stating that the VARO still had it since March 2012, and was unclear as to why the VARO had not yet certified the claim to the Board. Considering the fact that the VARO tried to shut it down via a VCAA notice without evidence or discussion of reasons and bases, I doubt very much they're trying to "develop" the claim. But, it's only been a year and a half, so I figure I'll wait until March of 2014 at the latest, sooner than that if I get the urge to do something else. Is that a reasonable approach? Of course, I can always do a writ petition, but would that be enough time to let pass before the situation becomes unreasonable?

Also -- please remind me, can I submit an IMO to the Board with a request for reconsideration? It would be new evidence. Are reconsiderations at that level running more than 120 days lately? (I've always gone directly to the Court, thought I'd consider a BVA recon for once). That's the most time I'd have after a recon request till I'd have to take it to the Court, anyway, correct?.

If any of you remember me, you may recall I was fighting for 100% schedular from 90% schedular for my husband covering the first ten years of his medical retirement. We've gotten as far back as early 1997, still plugging away for the three years before that. Never give up, never give up!

Edited December 8, 2013 by lotzaspotz

[FormerMember]

Bradley isn't nearly as useful to comprehend this as Buie. In some ways Buie updates the Bradley jurisprudence. Give me an actual breakdown of how you see his ratings and the order in which you received them. Effective dates too, if you would. Sounds like they are doing a 3 card Monte game on you. If you haven't read Buie, see this http://asknod.wordpress.com/2011/09/27/cavc-buie-5-v-shinseki-0-2011/

a

cp

Edited December 9, 2013 by asknod

[lotzaspotz]

Thanks for the link, yes I need to read Buie now.

Here's my husband's ratings with effective dates (the formatting is a little skewed, hope this is readable):

Initial Rating and Issue Effective Date Increase % Effective Date Increase % Effective Date

60% for residuals of pituitary surgery 8/27/93

30% for organic mental syndrome 8/27/93 50% 8/27/93

10% for lumbar spine scoliosis 8/27/93 20% 8/27/93 40% 7/8/03

20% for bilateral visual field loss 8/27/93 30% 2/4/97

20% for hypoadrenalism 8/27/93

10% for cervical spine DDD 8/27/93 20% 7/8/03

10% for chronic sinusitis 8/27/93

10% for scar postoperative pilonidal cyst 8/27/93

10% for scar postoperative abdominal hernia 8/27/93

10% tinnitus 7/13/98

50% Sleep Apnea 10/28/07

30% Bilateral Cataracts 11/6/07

[lotzaspotz]

Read Buie, OMG! We filed this pro se. There appears to be some hesitancy on the part of vet attorneys (obviously not Ken Carpenter) to handle this particular type of claim. It appears that there's plenty of precedent (and plenty of retro to get 20% of), am I missing something?

[john999]

I had TDIU since 2002. Around 2008 I got an extra 60% for an AO condition. I asked for "S" using Bradley V Peake in 2010 after I heard about that decision here on hadit. The VA called a CUE on themselves and granted me the "S" with about two years of retro. If your husband is total plus 60% he is entitled to "S". You should not even have to file a claim. Of course , I did because the VA was not to swift on the Bradley V Peake decision. I quoted Bradley v Peake as my authority for getting "S".

[FormerMember]

So your SO's rating is 60+50+20+20+20+10+10+10+10= 91% as of 8/27/93. I would have pushed for TDIU then unless they just gave it to you. Back then you legally had to file the 8940 though or no dice.

After that, the the upgrade to 30% from 20% for the visual loss would require a recalculation under Buie in 97. There, you would be 60/50/ 30/20/20/10/10/10/10=95% which rounds up to the magic 100%.

In 1998, you began your climb of Mt. SMC-S with the addition of a new 10% for ear ring.

Once again in 2003, the Buie rule book has to come out. Now you are 60/50/40/30/20/20=95 % and 10/10/10/10=30% if you take the uptick at 95%.

Lastly in 2007, Buie says 60/50/50/40/30=100% Then 30/20/10/10/10/10/10= 70%. Now read the fine print of SMC -S which specifies that the additional 60% must be ratings that are not secondaries or for the same body system rated under a different code.

(1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems,

This assumes TDIU standing in as a 100% P&T (but not schedular). This would be the kicker. Which disease or injury becomes the primary focus of the disability? The 60% from the Pit. surgery? It is the prime legal requisite for TDIU at that point in 1993 as a stand-alone rating but if you did not file the 8940, they would not be legally required to contemplate it. Technically, if you could point to that date and prove he had not worked in a year (i.e. from 8/27/1992) then you legitimately were entitled to SMC S much sooner as you would recompute the percentages differently once the TDIU subbed for a 100% schedular. Again, no filing of the 8940 would be a hindrance to the TDIU.

The whole thing flies on the TDIU date if there was one in lieu of a finding of 100% combined that made you eligible. I see no reference to when or if your SO attained either one.

a

cp.