Special Monthly Compensation at the Statutory Housebound Rate (bradley v Peake) in IU

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Special Monthly Compensation at the Statutory Housebound Rate (bradley v Peake)

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71infantry

#21

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Posts: 4990

Sep 25 10 5:59 PM

redleg9 wrote:

In-country Vietnam vet has 70% for back injury to include partially fused spine, 30% PTSD. 100% (IU) more than 10 years. Recently diagnosed with lung cancer. Will be undergoing treatment for approximately 2 months (radiation and chemotherapy). Previously diagnosed with COPD and uses oxygen 24/7.

Based on cited case, my understanding is that for cancer treatment period plus minimum of six months, rating will be 100% and SMC "s" applies.

Is my conclusion probably correct, probably incorrect, way out in left field or additional information required?

Thanks for any input you care to provide.

If you can prove service connection for the lungs then yes you would get the SMC.

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71infantry

#22

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Posts: 4990

Sep 25 10 6:08 PM

Ivac wrote:
If you request the C file, or if you re-read almost any IU decision based on more than one s/c disability, you will almost certainly see the phrase - "claimant's service connected disabilitiES (plural) preclude employment." I'm basing this on having read hundreds of IU decisions in the past.

That means that it must be assumed that VA determined that all disabilities help cause IU, therefore one s/c disability alone cannot be singled out as the cause of IU, and Bradley criteria are not met, even if he/she has one disability that could be the basis for IU (minimum of 60%) and others that combined to 60%.

I think this is an assumption on your part. All decisions based on IU will state the reason or reasons for IU. It will state the reason the claim for IU was considered, and the evidenced reviewed , then it states the decision.. If it was based on one condition it will clearly state so, and likewise if it was based on combined conditions this will also be known.

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71infantry

#23

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Posts: 4990

Sep 25 10 6:14 PM

USNDW wrote:
No it doesn't. It simply says

"Entitlement to Individual Unemployability is granted because you are unable to secure or follow a substantially gainful employment occipation as a result of service-connected disabilities,"

That is the entire explanation. I have reviewed the entire file 2x, and the sections discussing IU and ratings at least 10x. There is nothing in any document that states why I was granted IU.

There has to be something! What was the reason for requesting IU, , what evidence did they considered? etc... something states why your rated IU.

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USNDW

#24

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Posts: 4378

Sep 25 10 11:32 PM

I just wrote what was in my award. I have asked once by phone, and 2x by IRIS, and have never been answered, other than they refigured my ratings after a NOD for the right knee, and then they added the left shoulder which put me at 100% schedular, but 9 months later. So since last October I have been asking them what was the reason given for TDIU, and none ever has been, other than what I wrote.

Trust me, I have scoured my C file, and even found the signatures and notes made by the OIF/OEF rep. and the authorizer, and there is nothing. I did supply them with my SSDI award, but again, based on what everyone is telling me here, there should be a reason given, but there is not.

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71infantry

#25

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Posts: 4990

Sep 26 10 12:12 AM

USNDW wrote:
I just wrote what was in my award. I have asked once by phone, and 2x by IRIS, and have never been answered, other than they refigured my ratings after a NOD for the right knee, and then they added the left shoulder which put me at 100% schedular, but 9 months later. So since last October I have been asking them what was the reason given for TDIU, and none ever has been, other than what I wrote.

Trust me, I have scoured my C file, and even found the signatures and notes made by the OIF/OEF rep. and the authorizer, and there is nothing. I did supply them with my SSDI award, but again, based on what everyone is telling me here, there should be a reason given, but there is not.

Do you have all teh pages... it does not see natural not to have any discussion or reason for the award...

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cruiser

#26

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Posts: 17615

Sep 26 10 8:42 AM

Despite what you might read in forums such as this, in the real world not many folks are going to get smc "s" as spelled out in Bradley v. Peake. There will be a few, but not many in the grand scheme of things. VA has been granting housebound to pension recipients under a similar type scenario for several years now; however, the little trick (actually a manipulation of the sequence in which evidence is submitted) that VSOs use to get this isn't really isn't feasible for compensation.

There are essentially two situations where a veteran can obtain smc "s" on the basis of Bradley v. Peake. First keep in mind that in almost all cases when IU is granted, it is based on ALL existing service connected conditions at the time of the decision. Whether this is actually true or not is a moot point because VA will simply say that it is. Don't forget that we are talking about a loophole in the law here and not what was actually intended so VA is not going to bend over backwards to see it your way.

With this in mind, the disability that provides for the independent 60 percent or higher evaluation will have to be something that came along AFTER the IU was granted. For example, you obtained service connection for a disability after being granted IU and it is evaluated at 60 percent or higher. Another possibility is that at the time you were granted IU, you had a service connected condition that was asymptomatic and evaluated at 0 percent and then after you were granted IU it increased to 60 percent or more. I'm not saying that it is impossible, but absent either of these scenarios I think it will be extremely difficult to obtain.

Of course a few will say that this is nothing more than my opinion, and they are right; however, I think it should qualify as an informed opinion as it is based on not only my own personal experiences but also on what my friends who are still working at VA are telling me about how VA views this matter. At some point I think that the law will be quietly re-written to stop these type housebound grants for both pension and compensation; but given the relatively few who have managed to qualify for this benefit it hasn't been a big priority.

Cruiser

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USNDW

#27

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Posts: 4378

Sep 26 10 11:08 AM

I have all the pages from the C file and it is written as I posted before, and is similar to what Cruiser just posted. They said based on your service connected conditions. And I would think if there had been a condition/conditions that I was granted IU for, they would have told me by now.

I did have a rating of 30% for the right knee with the initial award, and was given a 60% after filing a NOD. If I remove the knee totally from my initial reward I was still rated at 93= 90%, which is what I was before it being increased, and was the rating I had when awarded TDIU.

If I subtract all of my lower extremety ratings, I still have a 88%= 90% rating. So even with the knee at 30% my lower extremity bilaterals were higher than 60%, and without lower extremeties I still qualified for TDIU, and that is why I was asking,

How do I get the VARO or anyone at the VA to tell me what my TDIU award was based on? Reading through my C file, I get the idea it was not based on any set of conditions, just overall, but is that the correct way to do it??

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redleg9

SMC

#28

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Posts: 31

Sep 26 10 2:30 PM

Thank you 71Infantry and also Cruiser. I believe that the AO presumption applies for service connection and this example appears to be one of the "real world" exceptions described by Cruiser. Thanks to both of you for advancing my knowledge of "homebound" and Bradley v Peake.

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71infantry

#29

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Posts: 4990

Sep 26 10 4:14 PM

USNDW wrote:
I just wrote what was in my award. I have asked once by phone, and 2x by IRIS, and have never been answered, other than they refigured my ratings after a NOD for the right knee, and then they added the left shoulder which put me at 100% schedular, but 9 months later. So since last October I have been asking them what was the reason given for TDIU, and none ever has been, other than what I wrote.

Trust me, I have scoured my C file, and even found the signatures and notes made by the OIF/OEF rep. and the authorizer, and there is nothing. I did supply them with my SSDI award, but again, based on what everyone is telling me here, there should be a reason given, but there is not.

I posted this in another post you had started but to make sure you see it I will list it here. this is what my tdiu award letter stated....... so look for something like this ( format ) in you letter hope it helps:

I am going to copy exactly what my letter states for my award of TDIU hopefully you will then get an Idea of what to look for.

Issue:
1. Evaluation of low back strain ,degenerative disc disease, left foot drop currently evaluated at 40 percent disabling.
2.Entitlement to special monthly compensation based on loss of use of left foot
3.Entitlement to individual unemployability
4. eligibility to dependents education assistance under 38 USC chapter 35
5. Entitlement to a seperate evaluaton for foot drop
6. Entitlement to automobile and adaptive equipment or for adaptive equipment only

Evidence:
VA Form 8940 received 06-10-99
reports fro VAMC Durham NC dated 09-98-to 05-98
veteran['s statements dated 02-08-99 and 09-23-99
Civil service disability retirement decision dated 05-17-99

DECISION:
1;. Evaluation of low back strain, degenerative disc disease , left foot drop, which is currently 40 percent disabling, is increased to 60 percent effective Sept 19, 1998.
2. Entitlemnent to special monthly compensation based on loss of use of left foot is granted effective Sept 19, 1998.
3. Entitlement to individual unemployability is granted effective May 26, 1999
4. Basic eligibility to dependants education assistance is established from May 26, 1999
5. Entitlemnt to separate evaluation for left foot drop is not warranted , as it is part and parcle of the back injury.
6. Entitlement to automobile and adaptive equipment is established.

reason and Bases:

1. The evaluation of low back strainb, and left foot drop is increased to 60 percent disabiling effective September 18, 1998. An evaluatioon of 60 percent is grant whenever there is pronounced intervertebral dis syndrome with persistent symptoms compatible with sciatic nurophy, characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc and little relief.

then the medial evidence is discussed in the next paragraph...

Your letter should be formated some what the same....

Now in my case I was awarded 60% for asthma in August 01   (Over two years after I was awarded TDIU) , and received a 100% rating for asthma/COPD in Mar 07... My TDIU was revoked ( as it should have been)

Therefore according to bradley v peake I should have received the statutory Housebound rate from Aug 01 thru Mar 07,            ( In March 07 I was awarded A&A)

If your situation is similar to mine then you should be entitled to the housebound rate..

(Also one last note: at the time of my award of TDIU I was already rated 70% combined,    the va could have just awarded me the IU without an increase in the rating for my back disability, and I would not have know any better.. this is one of those instances where I feel the va did a very good job in rating me because I did not even know about auto grants and many other things at that time)

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71infantry

#30

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Posts: 4990

Sep 26 10 5:18 PM

cruiser wrote:

Despite what you might read in forums such as this, in the real world not many folks are going to get smc "s" as spelled out in Bradley v. Peake. There will be a few, but not many in the grand scheme of things. VA has been granting housebound to pension recipients under a similar type scenario for several years now; however, the little trick (actually a manipulation of the sequence in which evidence is submitted) that VSOs use to get this isn't really isn't feasible for compensation.

There are essentially two situations where a veteran can obtain smc "s" on the basis of Bradley v. Peake. First keep in mind that in almost all cases when IU is granted, it is based on ALL existing service connected conditions at the time of the decision. Whether this is actually true or not is a moot point because VA will simply say that it is. Don't forget that we are talking about a loophole in the law here and not what was actually intended so VA is not going to bend over backwards to see it your way.

With this in mind, the disability that provides for the independent 60 percent or higher evaluation will have to be something that came along AFTER the IU was granted. For example, you obtained service connection for a disability after being granted IU and it is evaluated at 60 percent or higher. Another possibility is that at the time you were granted IU, you had a service connected condition that was asymptomatic and evaluated at 0 percent and then after you were granted IU it increased to 60 percent or more. I'm not saying that it is impossible, but absent either of these scenarios I think it will be extremely difficult to obtain.

Of course a few will say that this is nothing more than my opinion, and they are right; however, I think it should qualify as an informed opinion as it is based on not only my own personal experiences but also on what my friends who are still working at VA are telling me about how VA views this matter. At some point I think that the law will be quietly re-written to stop these type housebound grants for both pension and compensation; but given the relatively few who have managed to qualify for this benefit it hasn't been a big priority.

Cruiser

Hey Cruiser.....

I can't help but wonder about some of your statements , even though under you explanation I would qualify for the SMC.

Ironically, you do point out a situtation where the va might be willing to say something that isn't true, just to avoid awarding the SMC,  " Whether this is actually true or not is a moot point because VA will simply say that it is. Don't forget that we are talking about a loophole in the law here and not what was actually intended so VA is not going to bend over backwards to see it your way."   It is these kind of statements that make veterans feel that the va isn't doing their job. Remember the process was ment to be non-adversarial, and the benefit of the doubt legally belongs to the veteran, and your actually saying the va may be out to screw the vet if they can find an underhanded way to do it...  regardless of what the court said.

You also said, of your opinion " it should qualify as an informed opinion as it is based on not only my own personal experiences but also on what my friends who are still working at VA" I don't understand why anyone who worked for the va would say this in public.... even it if is true... and again it just reinforces the negative feelings that veterans have toward the va

You stated " At some point I think that the law will be quietly re-written to stop these type housebound grants "
I don't agree that the va is going to re-write the laws, of course I have no way of knowing since it is just my opinion but I don't think the va would have gone to the trouble of publishing guidlines for training or fast letter 09-33 if they though they could continue to deny. It would have been just as easy to appeal the ruling to the next level and draw it out like the government so often does... and just think of the money they could have saved.

You stated   "  the disability that provides for the independent 60 percent or higher evaluation will have to be something that came along AFTER the IU was granted. "
I also think it will apply to any case that a veteran can show his TDIU was awarded because of one issue and he had a seperate additonal 60% rating for another condition. Regardless of when the seperate 60% rating was awarded  either before or after the TDIU rating. There is nothing anywhere that I can find that comes close to your opinion. And I have been following this closely since I learned of the court case, but I just might be wrong.

Of course like you this is just my opinion....

Edited 2 times by 71infantry Sep 26 10 5:21 PM.

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redleg9

SMC

#31

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Posts: 31

Sep 27 10 7:43 PM

Speaking for myself, the context provided by Cruiser is invaluable. I've had a lot of trouble getting a handle on Bradley v. Peake and all of a sudden, things fell into place. Thanks to all who participate in the lively discussions on the VBN.

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kadena

SMC S

#32

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Posts: 401

Sep 27 10 8:55 PM

redleg9 wrote:

In-country Vietnam vet has 70% for back injury to include partially fused spine, 30% PTSD. 100% (IU) more than 10 years. Recently diagnosed with lung cancer. Will be undergoing treatment for approximately 2 months (radiation and chemotherapy). Previously diagnosed with COPD and uses oxygen 24/7.

Based on cited case, my understanding is that for cancer treatment period plus minimum of six months, rating will be 100% and SMC "s" applies.

Is my conclusion probably correct, probably incorrect, way out in left field or additional information required?

Thanks for any input you care to provide.

Your conclusion is correct: As long as he has 100% for lung cancer plus 70% for back alone is enough for SMC s.

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