Housebound based on CUE & Bradley V Peake

[Richard1954]

Can anyone tell me if they know of any awards based on CUE for Housebound under the Bradley v Peake ruling?

I submitted my CUE indicating that the VA never considered Housebound based on my TDIU for a single issue and a separate 60% rating 

I argued to the BVA on the 20 Apr 2018 that because two separate Gen Counsel Opinions were in effect (and conflicted with each other, ) at the time of my TDIU award, that Housebound was not considered.

The BVA Judge seemed to be intrigued with my argument, and even indicated it was a well though out appeal.

I know the argument being used by the VA is that the change in interpretation of a law  does not allow retro compensation base on the bradley v peake decision, unless you have had the claim in prior to the Bradley decision 

Those of you familiar with Bradley v Peake know that the VA tossed out Gen  Counsel Opinion 6-99 but kept the GCO # 2-94 and the regulations in place. I argued because the va had two conflicting opinions, that Housebound was never considered resulting in a CUE

Of course the Regional Office denied the appeal because they said the change in interpretation of a law  does not allow retro compensation, and therefor there is no cue.

Thank you for and response

 

 

[broncovet]

My opinion is "dont worry about CUE" when it comes to SMC S or Bradley vs Peake.  REASON:

     Cue is "mostly" about effective date(s).  Otherwise, you could simply apply again, and get benefits if awarded.  But, you are looking to get that effective date when you first applied.  

     The "effective date" for SMC S is far different than most effective dates, because there is no "date of application" for SMC S, because its an inferred issue, and you get it when you become eligible and you dont even need to apply.  So, you met the criteria for SMC S on   MM DD YY.  (date).  This should be your effective date.  

     With "regular" benefits (non SMC) your effective date is the later of the application date, or facts found, which is the date the doc said you became disabled.  

    But with SMC S (housebound) your effective date is the date you became eligible.  

     So, my suggestion is to apply for SMC S.  If awarded, your effective date is not the date of application, but instead the date you first met the applicable criteria, which is likely far earlier than when you applied.  

     Therefore, there is no incentive for you to file a CUE, and "raise the standard of review" to CUE, you would be better off simply applying, then appeal the effective date if you dispute the effective date of award.  That is, it makes it harder on you to meet the cue critieria, when its unnecessary..you still get the same effective date....the date you met that criteria.  

     Yes, its true that its probably error for VA to NOT have adjuticated SMC S when you were awarded your 100 percent.  And, it may rise to the Cue standard of review.  However, why make it harder on yourself?

      You could get to your VARO, probably, by getting in your car and driving..lets use an example, of 100 miles.  

      Or, you could crawl on your hands and knees, and walk through the jungles of Africa, and still arrive at your VARO.  

      I think I would choose the former, as I would elect "not" to file a CUE, but simply file a regular claim for SMC S.  

     Yes, VA should have already considered you for it, but that is water over the bridge.  Dont "attack" that decision with CUE, just because you can.  You dont have to go through Africa to get to your VARO.  

Edited April 25, 2018 by broncovet

[Richard1954]

 

26 minutes ago, broncovet said:

But with SMC S (housebound) your effective date is the date you became eligible

Sorry, but your recommendation would only work if I was  talking about an award for a date after Bradly v Peake became the law of the land. In order for me to get a retro award  (2001-2007) I have to show  that the VA made a mistake, or never considered it to begin with. From all that I have read,  the only people getting retro Housebound under Bradley v Peake are those that had a claim pending when the Bradley  decision was made ( NOV 2008). If a claim is generated after Bradley V Peake was decided then the effective date is no earlier Nov 2008, or when the veteran become eligible.  It would do me no good to claim Housebound from 2008 because in 2007 I was awarded A&A and a 100% rating. 

The regional office already indicated my claim was moot, because I was entitled to A&A in 2007, and the Bradley decision only effected claims that were already in the system and not retroactively. 

I appealed it to the BVA in hopes that the BVA Judge is more understanding to my argument. 

I was just trying to find out if anyone knows of a decision from the BVA for  a retroactive Housebound award based on CUE and citing Bradley v Peake as the reasoning. 

There are numerous awards   at the BVA level but everyone that I have found concerned a claim that was already in the system pending adjudication( Before Nov 2008)  many have retro awards back years prior to Bradley, but only  because the claim was already in the system. 

[broncovet]

Bradley vs Peake did not change the effective date rules for SMC S.  Its always been inferred both before and after Bradley.  

CUE'ing this may actually hurt your effective date, because, prior to Bradley VA did not have to consider TDIU.  But, after Bradley, VA was now put on notice that it had to consider SMC both with single 100 percent and with TDIU.    Remember, to allege a CUE, you have to use the regulations IN PLACE AT THE TIME of the alleged CUE.  

 

[broncovet]

You wont be able to allege that VA violated a regulation that had not occurred yet.  VA may have violated regulations, but they cant violate those regulations which have not yet become law.  

To allege Cue, you must cite the specific regulation VA violated.  

Edited April 26, 2018 by broncovet

[Richard1954]

1 hour ago, broncovet said:

You wont be able to allege that VA violated a regulation that had not occurred yet.  VA may have violated regulations, but they cant violate those regulations which have not yet become law.  

To allege Cue, you must cite the specific regulation VA violated.  

Actually I can clam CUE ( proving it is the hard part)  and did because VA had two General Counsel Precedence's in place that conflicted with each other,  and the newer one which was not in line with the regulations was used as the basic of denial. After bradley v peak was decided the va revoked The General Counsel Precedence (GCO) that was in conflict with the regulations and left the older GCO in place along with the regulations. So the VA was in fact violating it own regulations by using a poorly conceived General Counsel opinion to deny Housebound.    By your reading, since no CUE existed, there would be no way to get retro for the time period I mentioned. 

Anyway I  am not  asking anyone how to appeal the denial,  the appeal has already been done, and the BVA conference is done,  so this discussion is moot in that regard. .  All I am really asking is if  anyone has seen housebound awarded based on CUE in light of Bradley v Peake decision. I am just inpatient waiting for word from the BVA and  curious if anyone knows of such a case.

 

Thank you

[Berta]

"The regional office already indicated my claim was moot, because I was entitled to A&A in 2007, and the Bradley decision only effected claims that were already in the system and not retroactively. "

 

"I was just trying to find out if anyone knows of a decision from the BVA for  a retroactive Housebound award based on CUE and citing Bradley v Peake as the reasoning. "

I need to find one of my awards.It was an RO award.

CUE on SMC filed in 2003, awarded in 2012. The award stated HB as well as 100% plus 60-SMC S

The veteran died in 1994- the award was retroactive to 1992- the last 2 years of my husband;s life-but I do not recall any mention at all of Bradley V Peake.

Yet I would think the A & A award would have rendered SMC S as a moot issue, as VA stated to you.

Aid and attendance is for a very high level of disability:

https://www.va.gov/vetapp18/files2/1811948.txt

The rates are very high:  (I think these are pension rates)

https://www.smithbarid.com/blog/2017/11/01/2018-va-pension-aid-attendance-rates/