CAVC– Bradley v. Peake(2008)


This is a great Court of Appeals for Veterans Claims (CAVC) decision. It will show you, the VET, how the the CAVC operates and also demonstrate that they do not work for VASEC (Veterans Affairs Secretary Peake). They will not tolerate having their turf trampled and the VA rules and regs. trifled with. You will get real justice here. If you feel shortchanged, you can go up to the Federal Circuit Court and even to the Supreme Court, if you feel like it. Money (under the Equal Access to Justice Act or EAJA) will be appropriated for a law dog all the way to the Supreme Court if you prevail at each level.Oddly enough, if you win here at the Court and the Secretary doesn’t agree with it, he can take you up to the Fed. Circuit to contest it.   What is important is how the CAVC looks at these cases and how they rule on them. You will love this. They just changed the rules here on TDIU back to 1994 regs from the more restrictive ’99 change and reinterpreted the law on Special Monthly Compensation “S”(SMC-S) more liberally for the VET. An eagle-eyed member , one 71 Infantry, disagrees with my assessment above. He posts:
“Actually, the court did not change the law, the court clarified the law as it was written. This is a big difference, because if the law changed then CUE claims will be denied. Since the law was clarified CUE claims will have to be approved.  Were just going to have to wait and see if claims are approved based on Bradley v Peake.”

I will defer to his assessment, howeverI feel it was more of what I describe. The Court certainly “clarified” it. But they nevertheless did revert back to the more liberal 1994 interpretation. The Buie decision this year supersedes and improves on this anyway so it is yesterday’s news now.

 

  Well, as you can see, Mr. Bradley cut down a few trees to make some paper for this claim. This Veteran started his claims as soon as he left the Army which was wise. He had quite a few claims to file and he did a credible job. He failed to appeal the first one or two, but began to realize that VA was going to make life miserable. I would never think that if you were on the wrong end of a Bouncing Betty that you would have to fight to get SC for every scar and then go back and file for every muscle group, too. God forbid if you missed one! This guy must give the RentACops at the Airports conniption fits with all that microscopic shrapnel still floating around in there. He is a testimonial to Veterans everywhere of how persistence can pay off, though. Interestingly, VA really dropped the ball on several denial/decisions and denied him for things he never even filed for. The big banana that has changed is that VA now will have to go back for every Veteran who reads this and files and give them their SMC “S” rate. If you had trouble deciphering the Lawspeak, I’ll reduce it to Dick and Jane Format. If you get over 70% rated and you are a basket case, they will issue a TDIU which in essence is a 100% Permanent Total Rating. Now, if other parts of your body start falling apart and it hurts, you can file for more SC above that 100%. If you reach a point above 60% more(i.e. 160%) then you are entitled to that “S” rate, which is , in essence, about $325 more. VA always used to give you this if you had TDIU(not quite 100% but above 70%) plus 60% more. There was some confusion about doing this in 1994 so they rewrote the regs to agree with it. In 1999, they got stingy and took it away. They said you had to have an honest 100%(often referred to as 100% schedular rating) plus an honest 60% to get “S” rate. The VASEC decided to make this change arbitrarily without discussion and review. The CAVC has never had a chance to review the legality if this action so this was an opportunity to decide if it was legal to do. We talk about setting “precedent” on our HCVETS site and this is Precedent with a capital P. You guys from Arkansas can relax- its still called setting a president.What the CAVC does in every adjudication is to look at the laws as written and make sure they still are what CAVC says they are.This is called DE NOVO review. The Court in this case had a MAJOR disagreement with what the VASEC felt was correct interpretation. The Court has the last word in these matters so they get the honor of the B*TCHSLAP, which they administered harshly. They told Mr. Bradley he was also entitled to have some of his other stuff readjudicated as well, since the RO and the BVA failed to issue an SOC for one of his NODs. So if you think VA doesn’t give you a fair shake, read this through carefully and you will see they do. It makes me proud to be a Veteran and I hope the wealth of claims I’m currently shepparding through the system won’t require as many trees and time as my liverbox has almost reached the 10 year/100,000 mi. warranty limit. Remember, Veterans. Your claims die with you if they are not completed before you go to the Happy Hunting Grounds. File Early and Often the same way they vote inChicago.

http://www.uscourts.cavc.gov/documents/Bradley_v._FINALWITHNITS.v.3.12.03.08.pdf

About asknod

VA claims blogger
This entry was posted in Important CAVC/COVA Ruling and tagged , . Bookmark the permalink.

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