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Got a ? On my Barkley vs peake cases


Mr cue

Question

Ok I just got a statement of case about smc s an attendance got 60 day to va form 9

I have a Barkley vs peake cases that try to claim that my tdiu is based of more than one disability.

2001 dro decision granted tdiu 60% neck nothing else. 

? Why should I send to board an wait 3 or 2 year I can withdraw an claim on Berkley vs pesky an just make them look at decision with a cue. 

I just apply for smc an a&a not bases on Barkley case  

Its not a effective date thing it's when I became eligible right? Which would be 2001. 

Copy of the bogus soc decision stating my tdiu is based on my neck an elbow which got granted 10 yrs later after tdiu 60% neck

Copy of 2001 decision showing tdiu one condition. Also show my elbow wasn't even service connected.

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Buffalo- when I was in ebenefits it said I had 53 historic issues with them.

They gave me a lot of crap, I got a double DRO review under a IRIS CUE I filed.

My useless state vet rep went to the second review- they had not considered 4,000 bucks of my IMos.

The double DRO review got me the same DRO who did the denial and she handed the IMos back to my rep saying she could not read them.

I asked the rep if he got them into the record but he didn't answer- he said at least I got you another posthumous C & P exam.

I asked him if the DRO could not read the IMOs how can she possibly read the results of a C & P exam.

I could have cued them again but had enrolled into AMU to finish my degree and I KNEW the BVA would award the claim and they did.

I have named their Director and another person in my OAWB complaint and someone else , a veteran who deals with them, has written to the IG and is filing a WH complaint against their director. She called me twice to believe something that was ridiculous and it proved to me she does not know basis VA case law.

Buffalo also tried to make up a regulations to deny my SMC CUE, and when I asked them to produce it they didn't respond.They withheld probative evidence I had for my wrongful death case, withheld it from a C & P doctor as well as the Office of General Counsel. The last C &P I got was so ludicrous, (I won with a CUE 3 weeks later)that I am waiting for a copy of the actual signed exam.

I got a call from the local VAMC the other day asking me about the Exam, from info he got from Buffalo.

He said why do you need the exam? I said because I do not believe anyone with a medical background wrote-I think the director's VSO shill wrote it.

The Buffalo VARO made so many errors on my dead husband's issue ( not to mention that they killed him as well(FTCA.1151) that I told the OAWB I consider myself as having been targeted by them for the past 25 years.

It was never a question of not having the evidence- and I finally won all those claims.

Remember, anytime you get something from them, if there is an alphanumeric on the letter, that holds the initials of the last person who signed off on your claim decision.

I always make sure I used those initials in my past more recent CUEs.As Attention to.

That is one reason why my last denial became an award under CUE in 3 weeks.

 

You WON a CUE in the past- so be confident that you can do that again.

 

 

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  • Moderator

Did you recieve IU in 2001 because of your Neck disability?

at 60% that is possible to recieve IU under the 4.15

4.16  (a) &(b)  Extra Scheduler) if it keeps you from doing any type of employment.  this is what IU is for.

IF I am understanding your question ? you filed for SMC based on your 60% SC for your 60% Neck Injury/Disability? back in 2001 and your thinking they should have inferred the SMC Back then and also the EED should go back to 2001 correct?

if so  Unfortunately this don't  qualify for the SMC.

you need an additional S.C. Disability separate & distinct  from your original S.C. disability  rated at least 60% and this is based off your  2001  IU at 100%. or combined rating YOU HAVE NOW OR WAS S.C.. for it back in 2001.

   if a veteran gets IU lower than the 100%  and bump up to IU because of his S.C Disability keeps him from working  then  your basically consider to be 100% Although you may have a rating of 60%  70% 80% or 90% that keeps you from reaching the 100%

However I am not sure I understand what you are asking?

other members please chime in.

Edited by Buck52 (see edit history)
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It sounds to me like your applied for Housebound SMC S,  and it was denied.  You now want to know if under Bradley V Peake you would qualify for Housebound SMC S. Since you only have a single 60% rating you would not qualify for  Housebound under Bradley v Peake, as you would need  to be rated unemployable based on one 60% disability and have an additional unrelated 60% rating. 

it appears your already rated Unemployable based on the letter you posted, and you only have one rating of 60%. so again you do not qualify for Housebound based on bradley  v peake. You could argue the actual need for housebound , but you would need to back up the request with medical records and doctors statements indicating you need housebound.

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well if he is 60% combined rating or  just 60% for Neck Injury  or diesease   

I heard through the grapevine  that when they infer the IU  because of his S.C. Disability  AND CAN'T LEAVE HOME FOR WORK   then he  is actually house bound  by way of IU 

So it is possible to get SMC S H.B...

Elder member/Moderator broncovet is knowlegable about this.

 

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This is tricky.  I got HB based on Bradley V Peake.  I had 70% IU and then got another 60%, but the VA did not immediately grant HB.  I had to file a CUE to get it.  I think if you can prove that you are, in fact, housebound due to your combined rating of 60% then you may be able to get HB "S".  You will probably have to fight for it.

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Ppl I think have Barkley wrong the case is va didn't take iu as a 100%  rating plus 60. For smc s. Court stated if iu is base on one condition it smc s. U can't really get iu unless your 60% but it can be combined u cant get smc s

So they try to say mines is base on more that one condition. Mines was base on one condition.

That why on soc they say my iu was base on neck an elbow.

But the decision 2001 stated 60 iu for neck nothing esle

Elbow was grant 8 yrs later smh

So dro put my elbow was part of my iu just to hold up my benefits an they try to tell me I have to send it to board.

But I stated I was never give a dro hearing so my case cnt get send to bva till the hearing.

Than I am goin. Modern appeal way

My ? Tho I thing I could just cue the decision an they have to do it right.

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If you "meet the CUE criteria", yes, it may be faster than going to the BVA.  (If the VARO grants the CUE).  However, make no mistake..the bar for CUE is higher than for a regular appeal.  This means its possible, or even likely, that you could be successful in an appeal, but unsuccessful with a CUE.  

To be CUE, you need the following:

1.  The error needs to be specific..(you should allege the specific regulation that VA violated).  Berta's favorite is 38 cfr 4.6.  I dont think violations of  38 CFR 3.103 would suffice as a CUE, because of item number 4, below.  

2.  The error needs to be "undebatable" on not based on a judgement call.  

3.  The error needs to be based "on the evidence at the time".  If there is new evidence, then submit it under 38 CFR 3.156, not a cue.  

4.  The VA's non compliance with duty to assist is not cue.  

5.  The error must be outcome determinative.  (Its not enough to prove that VA forgot to dot an i, because that would not change the outcome). 

     Most people do "not" deliberately raise the standard of review to the cue level unless there is no other way.  If possible, I suggest new evidence under 38 cfr 3.156, or a regular appeal.  Only when these 2 wont fly, then you can consider CUE.  

     Remember, Cue can be filed anytime, while there are time limits to an appeal.   

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Yea I will win the cue he put that my tdiu was bases on my neck an elbow.

The 2001 drop decision granted tdiu 60 for neck. Even if u look got elbow non service connect. Its.a lie to stop my money.

Look were he stated you are tdiu but it is base on two condition neck an elbow.

When I spoke with a supiver she tell me she goin to put in for my dro hearing I did form 9 stating everything an say I didn't get my hearing.

Give them 2 month if I don't hear shit I put it in modern appeal an wait the year. 

I just hate play these game with them but it the only way u win your benfits.

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This decision and many more searchable at the BVA web site under Decisions may help you:

https://www.va.gov/vetapp09/files4/0935536.txt

and read page 4 of this pdf- it also refers to a Fast Letter, that I will try to find:

https://www.dav.org/wp-content/uploads/National-Bulletin-1009.pdf

 

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1 minute ago, Berta said:

This decision and many more searchable at the BVA web site under Decisions may help you:

https://www.va.gov/vetapp09/files4/0935536.txt

and read page 4 of this pdf- it also refers to a Fast Letter, that I will try to find:

https://www.dav.org/wp-content/uploads/National-Bulletin-1009.pdf

 

 

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https://vetsbenefits.net/special-monthly-compensation-at-the-statutory-hous-t46204.html

The Fast letter is there- our hadit link to it is broken.

You should ask for SMC S , under Bradley V Peake or ask for the Housebound award.

Housebound is based solely on medical evidence.

Did you ever apply for SSDI or VA VocRehab?

Can you scan and attach here the decision that did not award or consider SMC? Cover C file Etc prior to scanning it.

I could not find Hester V Shinseki .

VA awarded my SMC CUE but that was because my husband had 100% SC P & T for PTSD and also had independent awards under Section 1151.

Actually they granted both theories but only one payment-

He could not walk too far, could not drive, had vision problems from 1151 stroke, and could not dial a phone well nor detemine what kind of money he had, such as change and even denominations of dollar bills.Due to memory problems from th 1151 stroke he got lost when he was in the PTSD inhouse program and they took a trip in downtown Buffalo NY.

He got an operator of the phne to call me collect and he always remembered our phone number, but when I asked him to idenify anystreet sign ot busines he was near, he couldnt see well enough to do that.

He would heat up food on the range and walk away from it.I had to be with hjim all the time except for when the VA van took him to VA day Care at the local VAMC.

He had SSDI awards for stroke and then upon reconssideration they awarded SSDI solely for PTSD with a very favorable EED.

What I am suggesting is that you have to prove you are housebound.

I gave VA personal statement to that affect because I was a livestock farmer and I had to sell all of my beef,goats, and sheep because I could no longer raise livestock and give him care at the  same timeafter he had the 1151 stroke.

My personal statements as to the HB nature and also as to the 100% plus over 60% additional were all supported by the medical evidence they had in their possession in his life time. ( part of the CUE criteria)

My SMC CUE is here somewhere.I filed it in 2003 .They awarded it about 18-20 years after he died.It never went to the BVA.

SMC S is not awarded for not being able to work, but for documented factual medical evidence.Personal statements from significant others can help as well.

 

 

Edited by Berta (see edit history)
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I was think doing a cue. Because I look at the Barkley case he. Won because.he was tdiu 60 % for one condition.

This dude was aware of this why would u  put my tdiu was base on neck and elbow when the.decision 2001 say just neck elbow not service connected.

Last I put in for a&a this dude keep doing my a&a under bedridden cretia.

I have in home care pay by hospital because they keep playing.

? I can do a cue why I am in appeal. I was told I will have a Fri hearing but put in my form 9. Think about monderaztion appeal it will be send to tampa for processing different ro.

If I cue at to now I think it will not be.certified to board until they answer the cue?

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Sorry have learn this new site yet to replie to each person? Lol

But yes I apply for ch 31 independent living. 4 yrs ago. Got.granted message chair bed scooter cooking classes. By dc. Because I did a review of them denying my items.

 

3 yrs a go an still have not got my items smh.

They hate when u fight a win they.try.a hold u up

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You said:

"I just hate play these game with them but it the only way u win your benfits."

Your are correct- it is all about war games, that is why I graduated from a Military University- only civilian there-

It is a War of the Words.

"When I spoke with a supiver she tell me she goin to put in for my dro hearing I did form 9 stating everything an say I didn't get my hearing.

Give them 2 month if I don't hear shit I put it in modern appeal an wait the year."

Good! 

I am waiting for a decision on 4 CUEs I have pending.

If I get some BS decision, I will CUE that as well. I hope you dont deal with Buffalo RO. 

 

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Yea buffalo but every since. I won a cue claim 1993 to 2001 tdiu.

Smc s would be 1993 but they.stage.rated dnt give me.tdiu 60% till 2001 one condition.

So yea it a game with them 

 

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Yea I am goin to write the cue to an put it in why not somebody need to answer this I feel it was done on purposes.

There no way its is plain as day. An to keep say I ain't beddrin. Never one decision has anything. Comp exam for a&a stated with out help I could.be in nursing home nothing on decision

But I am not bedridden these are to different thing with different cretia. I took a break from this for about 8 yrs just hope I got the fight in me still smh

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Good luck with your CUE.  You need to allege the specific regulation you think VA violated.  If you think they violated 38 CFR 3.156 C (New Service Records), then say so.  

This is one reason  why I think an attorney may be good for you.  

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Ok I feel better my head was mess with me.

I drove an got the bogus soc cant wait For it to come in mail wiuld drive me nut smh

Next day I was back with form 9 an asking for a supervisor an why dnt I get the dro hearing before this soc.

She said I will put your. form 9 an request the hearing your case cant go anywhere in till hearing. Which mean ssoc. I tho she was b's ing.

 

Call an told she hand type into system  an request a dro hearing.. It not even scan in computer.

Everybody that work there ain't bad I guess lol I can relax again. Don't want the bva an us court fight. I did that

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I have been a member for a long time Yulooking was the name than.

With the  help of everyone here I was able to win a tdiu cue back 1993 from 2001. The same decision this dude try to say my tdiu was base on more than one condition. This was won at the court. An bva that why I dnt feel like fighting again lol

I will wait for the hearing an decision an ssoc I am happy with that I will win. 

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Yes- I remember you as Yulooking----

We had many discussions here , this is one of them, to try to find out if Bradley ( decided in Nov 2008) would be applied retroactively:

I dont know if it can be- will try to find out.

"? Why should I send to board an wait 3 or 2 year I can withdraw an claim on Berkley vs pesky an just make them look at decision with a cue. "

I would do both- because they might make another lousy decision due to this:

"She said I will put your. form 9 an request the hearing your case cant go anywhere in till hearing. Which mean ssoc. I tho she was b's ing."     

If they do prepare a SSOC, it might have CUEs in it.

"I have in home care pay by hospital because they keep playing."

Do you mean VA pays for it? This definitely sounds like good evidence for SMC S Housebound award.

Yulooking- I hope you will read over some of my posts here on 38 CFR 4.6:

Some info might be found under a hadit search for " Go CUE yourself VA".

I have been successful in filing CUE as soon as I got some bogus decision.And got   a fast award.

And no need for a NOD , etc etc etc.

Wehave a link here to my article The Power of 38 CFR 4.6...I will try to find it--- 

The Buffalo VARO broke this regulations countless times over the past 25 years regarding my claims, but filing CUE got them to do it right.

I have 4 issues now all CUE and sent them not only the sole piece of Evidence I need ( OGC 08-97 ) but sent them a  21- 4138 with contact info for the General COunsel VA, if they cannot understand the Precedent Opinion.

The article is here:

https://www.hadit.com/power-38-cfr-4-6/

The VCAA info is dated but is now called the 5103 waiver.

One of my CUEs is based on the fact that a VSO for the Director called me to verify they had sent me a 5103 and had the evidence I had sent to them.

The 5103 was for two claims. The denied one and under CUE they reversed right away.

The other claim had significant evidence with it- and I wrote down on the 5103 , a description of the evidence for  both claims ( One was the one I cued right away.)

I asked him to read back to me a brief decription of what he had- ( this way he could not agree with me if I said what I sent- I know the tricks they play) and he read back a brief heading of each piece of evidence I had sent for that claim-

then they decided the claim without even using the evidence at all! 

That is one of my current issues.

My long point here is the 38 CFR 4.6 is a GREAT regulation to whip put on them under CUE if the VA fails to consider any probative evidence they have in their possession.

Buffalo has done this to me so many times, that I expect another ludicrous decision.And will file CUE on it the very next day.And will file the CUE with IRIS as well as a complaint.

even though they reversed the 1151 HBP claim( the first claim listed on the 5103)and awarded, within a few days I might have a signed copy the C & P exam that prompted the denial.

I do not believe it was prepared by anyone with any medical background at all.It was ridiculous and the evidence list contained the sole piece of evidence I needed and sent to them- it was a VA Central Medical report.The cardio doctor who did it long ago -for my FTCA case- is still A top cardio with VA, and specializes in HBP, the claim was for HBP.

So they did list the evidence I had, but still this bogus psuedo medical person tried to downplay an  opinion that held far more weight than his did.

I think the Guy who called me from my RO (and who said we have already 'picked' someone  who will do the posthumous HBP C & P exam) is the person who wrote the exam. He had no medical background at all.

If the exam was done by a real VA or contracted doctor , then I will raise Holy Hell! Because this is how malpractice starts in the first place.

If a VA doctor or contracted doctor cannot prepare a valid C & P exam, based on the medical evidence in their possession, and in my case this was a simple 2 page exam ordered by General Counsel ,how in the heck can they diagnose and treat veterans, with any proper medical care.?

38 CFR 4.6 is my favorite regulation to use for CUE.However there are many other legal errors they make that would render the basis for a valid CUE. 

 

 

 

 

 

 

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