I have found a decision on the BVA that determined that retro for Housebound should go back to the date the veteran met the statutory requirements for SMC, not the date Bradley v Peake was decided which was 26 Nov 2008. It granted 14 years of retro
The claim was originated on 31 Jul 2008 for accrued benefits 4 months before the Bradley date
The veterans widow appeal the case all the way to the Court of Veteran Appeals
it was remained back to the regional office in Jan 2016 which vacated a Jul 2015 BVA denial
The RO awarded a claim back to 26 Nov 2008 the date of the Bradley decision
The widow appealed it again indicated veteran was due SMC on 2 Aug 2003 the day veteran was awarded TDIU
The BVA said:.
When the Court issues a decision invalidating VA's interpretation of a statute or regulation, this does not amount to a change in statute or regulation. Indeed, when the Court issues such a ruling, it is, in effect, informing VA that it has been misapplying the existing statute or regulation. Therefore, the RO is incorrect to consider the date of the Court's decision in Bradley as an effective date based on a change in VA regulation.
By rating decision of September 2008, the Veteran was granted TDIU from August 2, 2003. He met the statutory requirements for SMC, by reason of housebound status, at the time of the claim.
But for VA's interpretation of 38 U.S.C. § 1114(s)-later determined by the Court to be incorrect-the Veteran would have been entitled to SMC benefits from the date of his claim. Accordingly,
based on the guidance offered in VAOPGCPREC 9-94, the effective date of the claim should be retroactive to the date the Veteran met the criteria for the award, now August 2, 2003,
because at as a result of the award of TDIU, which counts as a single disability under the Bradley and had other service-connected disabilities that (1) involve a different bodily system
than the 100 percent disability and (ii) are rated at a combined disability rating of 60 percent or higher.
38 U.S.C.A. § 1114(s).
Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-17 517 ) DATE
https://www.va.gov/vetapp18/files1/1801821.txt
