Hambocous

I asked about whether the 80% was a combined rating-
The BVA in this recent decision gives the ratings and DCs for narcolepsy.
The General Rating Formula for Major and Minor Epileptic Seizures (General Rating Formula) provides that both the frequency and type of seizures a veteran experiences are considered in determining the appropriate rating. See 38 C.F.R. § 4.124a, DCs 8910, 8911. A major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. See id. at Note 1. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). See id. at Note 2. Under the General Rating Formula, a 10 percent rating is assigned for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is warranted for 1 major seizure during the preceding 2 years or 2 minor seizures during the preceding 6 months. A 40 percent rating is assigned for 1 major seizure during the preceding 6 months or 2 major seizures, or 5 to 8 minor seizures weekly, during the preceding year. A 60 percent rating is warranted for 3 major seizures, or 9 to 10 minor seizures weekly, during the preceding year. An 80 percent rating is assigned for 4 major seizures, or more than 10 minor seizures weekly, during the preceding year. A 100 percent rating is warranted for 12 major seizures during the preceding year. Note 1 to DC 8911 provides that a 10 percent rating is warranted when continuous medication is shown to be necessary for the control of epilepsy, and that 10 percent rating is not to be combined with any other rating for epilepsy. See 38 C.F.R. § 4.124a, DC 8911."
While this decision might not help, (this vet  was denied a higher rating) I hope they are using the correct DC Diagnostic Code and rating-in your case.
 
for your Narcolepsy.
 

You said:
"I felt the board made a error with my TDIU claim when VARO denied it and didn't send it up to BVA to make it apart of the pending appeal."
Did you formally appeal that specific denial of TDIU on a I-9 and is this still pending???
Is it part of what is going back to the BVA?
From what I see here your narcolepsy and sleep apnea prevented you from being substantially employed, and the Voc Rehab decision, hopefully stated those SC disablities also prevented Voc Rehab as being feasible.
Is the 80% a combination of the narcolepsy and sleep apnea?
Sorry for all of my questions---
"NOW These two current AOJ rating decisions (no other claims on appeal) are going back to the BVA (after those adjudications) for additional arguments because they are now considered residuals of TBI.TBI being granted ( I guess ) opens a door for new effective date of when all the adjudicated claim symptoms arose, I’m going for the day after seperation Nov 1997 the date of the original claim."
GOOD!
You said: "VA determined; I had a combined rating for TDIU and I therefore was not eligible for a total plus 60; as I did not have one disability rated at 100 percent; the 2013 increase BVA gave me for narcolepsy to 80% made me a 100 percent schedular. That is how VA viewed me. Combine schdular"
I will try to find more on how some vets at BVA got 100% for narcolepsy-and if they also had sleep apnea combined with it-----
I think that is the key path to be on-did your private IMO of the past indicate in any way that the narcolepsy was ratable at 100% ( Plus Permanent and Total) ????
 I have had multiple issues with the VA for over 25 years, but I only had one BVA case.
A claimant can provide evidence to the BVA as soon as they get a docket #.
The BVA not only actually read and considered my 3 IMOS, which my RO had completely ignored ***they also considered my lay medical statements that the opinion the BVA had requested was too speculative.
I could have easily filed a CUE- but my SMC and IHD CUEs were still sitting at my VARO and I was enrolled into a Military school- and believe me, it was not easy being the first civilian they ever had there.I had to be patient  and knew the BVA would award my claim.
My goal at American Military University was to graduate with honors - and I did.
I knew the BVA would award that claim and they did- otherwise a CUE on that might have set at my VARO for almost 8 years until I won that at Regional level ( a different VARO-Nehmer-Philadelphia)
I used to give advice here on GCY claims- meaning Go Cue Yourself VA, and I had been successful with that in the appellate period.
It is well worth every claimants time to fully review their recent decisions for CUE potential in the Appellate period. Others here have taken my advice and succeeded on GCY  claims.
My SMC CUE resulted from an award but my vet rep -who noticed the SMC aspect was overlooked, told me not to NOD the decision because 1151 claims are different than direct SC claims.I wondered about that for many years and the internet sure was no where what it is today-
I realized many years later he was wrong, and cued the decision and won.
And it i always worth it to NEVER GIVE UP and you are sure not willing to do that, and your successful CUE is Outstanding.
Others here can learn a lot from your success, and how you are shaping a success for more awards.
Would you be willing, if needed ,to obtain another IMO/IME?
I invested 4 thousand into IMOs and then even paid for a cardio opinion-but my BVA award came before the CArdio opinion was prepared and the forensic firm refunded about half of what I paid.
It was the best investments I ever made for those claims the BVA awarded, and easily absorbed by the multiple additional  benefits it bought me.....such as DEA Chapter 35- the VA paid for my education at AMU, REPS, FTCA refund offset, etc etc.
It will take me time to go over those BVA narcolepsy decisions........those decisions are not binding on the VA, but they reveal how the veteran got the award.
BVA CUE decisions- they also were the biggest help to me in filing valid CUES.
 
 
 
 
 
 
 

You did VERY well-WOW- it is evident that you are well versed in VA regs and case law-
unlike those who made the past erroneous decisions.
can you clarify this :
The BVA letter dated 10/21/20 indicates the BVA put your appeal back on the Docket.
The VARO award letter is dated 10/02/2020. TDIU
The other award letter  (RO) is dated 9/18/20 TBI
What did the BVA put back on the docket?
As per your # 1 question below, do you have other open appeals at the BVA?
Per the SMC CUE- this  sounds like my SMC CUE.
It is in the CUE forum    a real no brainer, but I had to fight for it because my RO cannot read.
The evidence I used is there as well.I didnt need much, just proof of my dead husband's 100% SC P & T rating plus prove of addition 1151 rating over 60% and proof that they broke 38 CFR 4.6 and did not "consider" him for SMC. He was granted ( by a different VARO posthumously) both SMC S 100% plus 60 and also the HB SMC ( only one payment however.)
You could use my tactic ( which is now part of M21-1MR due to my correspondence with former Sec Shulkin,) and ask them to CUE themselves within the appeal period-on the first decision you posted that reveals you meat the criteria for SMC S.
I have very limited time these days here and will see if you meet the SMC T as well, but I bet you have already determined that, and that too could be filed as a CUE.
 
These awards  are  real winners, and should encourage ANYONE who has to fight back and I COMMEND YOU for pushing these issues to success,and it all shows that the VA can and DOES make errors on their adjudications!
Will BVA re-adjudicate all claims on appeal to a Nov. 1997 Earlier Effective Date (EED)? I  claimed them in Nov 1997 following a day after separation!
They didn't infer SMC (S) or (T)  - 

You also asked:
"Do I CUE the “SMC” decision that was dismissed in my BVA decision 16-13-292 because the 
CUED TDIU has been granted  with a new EED?"
The SMC CUE should be based on the first decision they made, with full knowledge, by evidence, that you were eligible for SMC.
However a CUE in the appeal period can go much faster but would not possibly give you the retro a CUE on a past, unappealable decision would.
 

Can you give us the breakdown for the TDIU award?
What did SSDI award on?
SMC T-
https://cck-law.com/blog/special-monthly-compensation-series-smc-t/
"T" is a very high level of SMC  and I do not know if you are eligible for that- however-I do think you should have received consideration, on an inferred SMC S claim.
This is why I asked about the SSDI award:
"Service connection is currently in effect for posttraumatic stress disorder (PTSD), rated at 70 percent; bilateral hearing loss, rated at 40 percent; tinnitus, rated at 10 percent; Parkinson’s disease, rated at 40 percent; left upper extremity tremors, rated at 30 percent; left lower extremity tremors, rated at 10 percent, right lower extremity tremors, rated at 10 percent; coronary artery disease, rated at 30 percent; and bradykinesia (stooped posture and balance impairment), rated at 30 percent. The combined rating is 100 percent since August 13, 2015. A TDIU is also assigned since August 13, 2015. In denying SMC in the July 2018 Supplemental Statement of the Case (Record 07/11/2018), the RO only discussed statutory housebound benefits, i.e., the fact that the TDIU rating and the 100 percent schedular rating were based on multiple disabilities, and that no single disability could support either rating. See Bradley v. Peake, 22 Vet. App. 280 (2008). The post-remand decision in the Supplemental Statement of the Case does not even discuss whether the Veteran is actually in need of aid and attendance under the regulations."
and 
"It is unclear whether the Veteran was actually in need of aid and attendance for the entire period on appeal. Parkinson’s is a progressive condition and the Veteran’s impairment has apparently worsened over the period on appeal, as reflected by the statement by the Veteran’s daughter. While there is some uncertainty regarding the effective date for SMC, there is no staged rating regarding the pertinent disabilities. The RO has found that the Veteran’s Parkinson’s and associated symptoms have been 80 percent disabling (combined ratings) since August 13, 2015, that his PTSD has been 70 percent disabling since August 13, 2015, and that he has been 100 percent disabled due to the combined service-connected disabilities since that August 13, 2015. As this is a favorable finding, the Board will find in accordance with it. Therefore, the Board finds that SMC is warranted for the entire period on appeal. "
https://www.va.gov/vetapp19/files7/19153339.txt
and
"In some cases, but not all, the assignment of a total schedular rating renders a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). In Bradley, the United States Court of Appeals for Veterans Claims (Court or CAVC) found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293 (emphasis added); see 38 C.F.R. § 4.14. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). SMC pursuant to 38 U.S.C. § 1114 (s), what is referred to as SMC(s) or SMC housebound, may be warranted in addition to his regular compensation if the Veteran has a total disability rating for a single disability, and additional service-connected disability or disabilities rated at 60 percent or more. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i); (emphasis added.) The total rating for the single disability for SMC purposes may be schedular, or may be based on TDIU, so long as TDIU was granted solely because of that single disability. Id."
https://www.va.gov/vetapp20/files7/a20011918.txt
Is there any SC disability you have,  that you could claim , should be predicated on a single SC disability?
Is there any way you fit into the 100% rating for narcolepsy?
Would this BVA decision help?
https://www.va.gov/vetapp14/files1/1406307.txt
You mentioned Voc Rehab, did Voc rehab turn you down due to one SC disability you have or more than one?
As I understand the Voc Rehab regs regarding SC, if a veteran is not voc -rehabable, due to SC, they are unemployable, due to SC.
 
 
 
 
 
 

Yes, this is GREAT!
I hope the pending TDIU claim will cause them to consider and award SMC.......
Broncovet stated above the requirements for SMC.
Do you get SSDI solely for one service connected disability?
Did Voc Rehab turn you down due to service connected disability?
You did very well so far and hopefully those pending issues will not take too long to resolve.
 
 

Big red flag, when they ask for ssn and birthdate WHEN THEY CALL YOU.    Its a hacker trick called "social engineering".  Va may ask for "last 4" and, or maybe when you served.  
Do you see where this is going?  Answer these questions, and it wont be going well..not for you!!!  You will be donating your next compensation check to purposes you may not have wanted.  

I hope others will chime in-
This BVA statement above from your case clearly shows how you could have appealed this, under (b):
"A TDIU could meet the SMC requirements by either: a) increasing a single disability rating of less than 60 percent to at least 60 percent (in a case where a separate 100 percent rating is already established), or b) increasing a single disability that is less than 100 percent to a “total” (100 percent) rating, in a case where there is already established a combination of other ratings that meet the separate 60 percent rating requirement for SMC."
If you have medical evidence from any source-SSDI,VOC Rehab, private doctor etc, that your Narcolepsy was A totally disabling (100%)  disability, you  could re open the claim, with that information, asking for a 100% service connection for it- and then request ,with the claim that VA properly consider you for SMC.
You could also have an IMO /IME doctor support that claim ( with the medical records ,if they reveal you should have been given a higher rating solely for the narcolepsy, to also state that the narcolepsy is also Permanent in nature, if that is a medical fact, and they should give a full medical rationale for each opinion they have.
It is the 100% SC rating you need, as the BVA decision says, for consideration of SMC.
Maybe even the 50% depression or the other 50% could even be raised to 100%.
But I am just taking a guess here, based on what you have told us---
-the BVA decisions are very clear, and I see no potential CUE the BVA made in them,  but I still think you need a VSO who can adequately look over your entire situation.
 
 
 

It sounds like the VARO "failed to adjuticate" the claim for SMC S, THE FIRST TIME, and its also likely the VARO failed to correctly implement the Remand, and probably order a C and P exam for housebound, as well as adjuticate SMC S upon remand.  
Its an error for the VARO to fail to comply with the Remand, to include readjuticating the issue of SMC S.  
A veteran can qualify for SMC S in 2 ways:
(Both require either a single 100 percent disability OR TDIU).  
1.  100 percent (single disability or tdiu, per Bradley vs Peake), plus an additional 60 percent seperate and distinct.  This is statuatory SMC S, and can be determined from the decision(s), and a c and p exam for housebound is not necessary.  OR
2.  100 percent (single disability or tdiu, per Bradley vs Peake), and the evidence shows the Veteran is "substantially confined" to his home. 
quote from Howell vs Nicholson:
https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

Can you give us the Docket# and Citation # for the BVA referral?
Can you scan and attach here the RO's last decision you received, as to the evidence list, and their rationale for the decision?
Cover your C file # and name, address prior to scanning it.
Have you, since getting the BVA decision, attempted to get a status of the referral via IRIS?
Do you have a vet rep who was on the BVA referral as your POA?
I am wondering why they have not considered SMC ?
 
 

Is this your BVA decision?
https://www.va.gov/vetapp15/files2/1510707.txt
This was a remand as well as a referral.
What has the DAV told you since they repped you on the above case (if it is yours)?
Have you moved since the remand /referral?
Did you get a decision on the remanded part of the BVA case?