Bradley v. Peake and the Housebound Rate or 160 Percent

According to 38 USCS section 1114(s), if a veteran has a service-connected disability rated as total and has additional service-connected disability or disabilities independently ratable at 60 percent or more, the monthly compensation will be adjusted accordingly. In other words, veterans may qualify for 160 percent or what some refer to as the “housebound rate”.

In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court of Appeals for Veterans Claims (CAVC) heard arguments as to whether the language in 38 USCS section 1114(s) “a service-connected disability rated as total” includes grant of total disability based on individual unemployability (TDIU). The VA argued the language refers to a total “schedular rating” and excludes TDIU. If VA’s argument were correct, it would mean veterans would only be able to apply for section 1114(s) special monthly compensation if they had a single disability rated 100 percent. However, the CAVC did not agree with VA’s argument.

CAVC first pointed out Congress could have excluded TDIU from consideration for section 1114(s) special monthly compensation, but it did not. CAVC next indicated the implementation of the Code by VA regulation initially in 1994 purposely excluded TDIU from satisfying the “total” requirement of section 1114(s). However, a VA General Counsel opinion indicated this restriction was not proper and VA promptly changed the exclusionary language.  Later in 1999, VA General Counsel issued another opinion that did exclude TDIU in one way.

VA General Counsel’s 1999 opinion excluded TDIU from satisfying the “total” requirement of section 1114(s) only in cases where a disability or disabilities would be considered twice for compensation purposes. For example, if a veteran was granted TDIU for his heart (60%), diabetes (20%) and right upper extremity neuropathy (10%) and later filed for section 1114(s) benefits, he would not be able to use any of the disabilities considered for TDIU in the calculation of the additional 60 percent needed for section 1114(s) special monthly compensation. The 1999 opinion essentially says you cannot rely on duplicate counting of disabilities for section 1114(s) benefits. But, as pointed out by CAVC, this interpretation does not completely exclude TDIU from the equation.

In the Bradley opinion, CAVC proposed it is possible for a veteran to be granted TDIU for a single disability and later granted service connection for another disability or other disabilities that amount to a 60 percent rating. CAVC indicated this interpretation complies with VA General Counsel’s 1994 opinion and 1999 opinion. CAVC held section 1114(s) does not limit a service-connected disability rated as total to only a schedular rating of  100 percent, and VA’s current regulation 38 C.F.R. 3.350(i) permits a TDIU rating based on a single disability to satisfy the section 1114(s) requirement of a “total” rating. Bradley v. Peake, 22 Vet. App. 280, 293 (2008).

The application of this holding is veteran’s who have been granted TDIU for a single disability, like ischemic heart disease or PTSD, and later qualify for additional service-connected disability or disabilities equal to 60 percent or more, qualify for section 1114(s) special monthly compensation. If a single veteran with no dependents is granted section 1114(s) benefits (the “housebound rate” or 160 percent), his monthly income at 100 percent, which was $2,858.24 would increase with the addition of 1114(s) benefits to $3,199.28. A difference of $341.04 a month.