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

 

 

[Berta]

Just to add- My husband was 100% SC P & T for PTSD and 100% under 1151-maybe that is why they did not refer to Brandley in my award- I will check-

"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."

That is exactly how I got them- They did not " consider" SC S in a 1998 award letter, from which the rating sheet fully revealed evidence for the100% plus 60 as well as HB status.

I filed 4 CUE claims on that award letter.

But I dont think Bradley was not an issue. 

Was was the breakdown of your TDIU award? If it was TDIU based on one SC, that might have triggered an SMC consideration.....but you get A & A ---that is I assume the A & A was granted in 2007.........?

Regardless of both SMC S's granted in 2012 in  my case, the VA only paid for one SMC S ,which was correct.

 

 

[Berta]

Richard -you do realize (I hope) that A &A encompasses HB.

A vet with A & A is obviously Housebound but A & A as far as I know is rated higher that SMC S-I could be wrong-----

The VA will not award both at the same time....at least not as far as I know------

OGC pres op 2- 94:

"HELD:

 

The plain and unambiguous language of 38 U.S.C. § 1114(s) does not restrict the nature of total ratings that may serve as a basis of entitlement to the special rate of disability compensation which section 1114(s) authorizes.  A temporary total rating based on convalescence, under 38 C.F.R. § 4.30, satisfies the requirement in section 1114(s) of a disability rated as total."

https://www.va.gov/ogc/opinions/1994precedentopinions.asp

That Pres Op was in affect when I filed my SMC CUE. I dont recall using it but I sent them  SMC requirements from M21-1MR and also a page from the VBM by NVLSP.

Dont be intimidated by the 9 years my SMC CUE took  ( never went to the BVA)- my RO has had me on their s--- list since 1995 . 

and has made errors in every decision I have ever received. I think it is because of the wrongful death award the OGC made. Twice the OGC had to order them to do something ( it involved their refusal to pay a five figure amount) after the FTCA matter was settled. Regional counsel also had to order them to pay about 40 thousand more on a different issue. When we are Right legally, we must diligently persevere.

Can you scan and attach here the CUE claim you filed?

(Cover C file # , name address prior to scanning it.)

 

 

[Richard1954]

1 hour ago, Berta said:

Richard -you do realize (I hope) that A &A encompasses HB.

A vet with A & A is obviously Housebound but A & A as far as I know is rated higher that SMC S-I could be wrong-----

The VA will not award both at the same time....at least not as far as I know------

Yes I am well aware thatA&A is a higher benefit that Housebound, and you can not have both Housebound and A&A at the same time. 

My claim is for housebound for the time period 2001 thru 2007.  This was for a period of time that I was rated TDIU for one disability and had an additional disability rated 60%.

I received A&A from 2007 thru the Present due to a 100% rating and a separate 50% rating ( L 1/2) 

I was never awarded Housebound, and it does not appear by the record that it was ever considered during the period in question.

My question was only that: Does anyone know of any case were the BVA awarded housebound based on a cue argument due to Bradley v Peake as I could not find one case when I looked.

I will have my answer from the BVA within the next 3 months.

 

Thank you for your input.

 

 

 

 

[Berta]

Thanks for clarifying that.

I too searched the BVA web site and found nothing based on your question.

However if you received SSDI solely for the TDIU condition in that time frame 2001-2007, and the VA was aware of that SSDI award- it sure could have been a CUE   if they should have awarded 100% based on the SSDI award during that time frame.

[Richard1954]

3 hours ago, Berta said:

Thanks for clarifying that.

I too searched the BVA web site and found nothing based on your question.

However if you received SSDI solely for the TDIU condition in that time frame 2001-2007, and the VA was aware of that SSDI award- it sure could have been a CUE   if they should have awarded 100% based on the SSDI award during that time frame.

I appreciate the response.   Let me try to clarify what happened.

I was granted TDIU in 1998 for a single condition that was rated 60%. In  2001 another separate rating was increased to 60%.  Unknown to me at that time I should have been considered for Housebound, but housebound was never considered. . In 2007, the separate 60% rating was increased to 100%, the TDIU was revoked, (even though it was for a different condition other than the 100& rating) ,  and I was awarded A&A. In 2008, along comes the Bradley v Peake decision. After my do diligence learning about housebound, and the rules and regulations that governs the awarding of Housebound and I  had learned all I could about Housebound, General Counsel  Opinions, and the regulations, I made a decision to claim CUE on the 2001 decision because the record shows no consideration to award Housebound.   My argument was  based on the use of the GCO  6-99 dated 7 Jun 1999,  as the reasoning for not considering Housebound.  Its a simple argument, the VA had two general Counsel Precedence Opinions in effect at the same time and they contradicted each other.   One was General Counsel Opinion 2-94 the other 6-99. The 2-94 was in agreement with 1114(s) indicating a TDIU could be used as the basic for award of Housebound, the 6-99 contradicted with 1114(s) and indicated TDIU could not be used for Housebound. At no time since the 6-99 opinion was published did the VA take into consideration that in was in conflict with the 1141 (s) and the other 2-94 opinion. Therefor, how could the VA make a valid decision knowing they had conflicting general counsel opinions  and did nothing to fix the issue.  It was not until the Bradley v Peake decision was published and the court ruled that the 2-99 opinion was invalid, that the  va  revoked the 6-99 opinion, leaving in place the 2-94 opinion and  1114 (s).   So my cue argument is based on these facts and non-consideration of Housebound at the time it should have been awarded.  If my argument was solely based on  Bradley v Peake, the  regional office and the BVA would rule that Bradley v Peake does not allow for retro awards based on the decision, and the Cue would be denied using the reason  that ", the decision (2001)  was based on the laws in effect at that time".  Of course this was the reason the Regional Office used in the end to deny me the CUE. When I made my argument via video conference to the BVA, the Judge mentioned that he was impressed with my argument, and he would give it due consideration.   Now,  my argument  is not saying anything new, in fact my argument comes directly from the Bradley V Peake ruling it just leaves all the BS out and makes it easier to understand.  Rater than to CUE based on Bradley v Peake, I claimed CUE based on the GCO 6-99 which conflicted with the regulation.  It seems to me, if I can prove my argument to the BVA without actually claiming Bradley v peake, that I will have a better chance to win the claim.  But the minute I claim CUE based solely on Bradley v Peake, they va will say  that any award date would be 8 Nov 2009 the date the Bradley v Peake decision was made. In my case an award date of 8 Nov 2009 would not help me in any way because in 2007 I was awarded A&A and I am arguing for a date from 2001 - 2007 as the dates I should of had Housebound.. Hope this makes it easier to understand.

 

Again I wasn't looking for any opinion on how to get an award of Housebound, just wondering if anyone had ever won a  cue claim based on the above outline or Bradley v Peake or does anyone know of a case.

Edited April 26, 2018 by Richard1954

[broncovet]

Thank you for the clarification.  Yes, Cue is all about effective dates, and you need one prior to Bradley to win anything.  I have not seen anything on CUE based on one OGC opinion vs another.  In almost all cases (maybe all), the more recent OGC opinion prevails.  That is, the new OGC opinion replaces the "old" OGC opinion to the extent that they conflict.  

These opinions do change, largely based upon changes in regulation and changes in case law.  

You may be over looking this, if, indeed the later OGC opinion is a "liberalizing law".  This is from NVLSP, scroll until you see the one "liberalizing regulations".  Of course, others of these may also result in an earlier effective date for you.

http://www.purpleheart.org/ServiceProgram/Training2011/W-2 Common VA Effective Date ErrorsL.pdf

Just out of curiosity, have you appealed the effective date for A and A (SMC L)?  You see, if you are awarded 100 percent, then VA needs to consider you for A and A.  If you are Not eligible for A and A, then they need to consider housebound.