I CUED the CUED and the TDIU for a EED at the same time was that right?

[Hambocous]

 I'm S/C 100% TDIU , SSDI and Disability retired due to S/C diabilities (no SMC's)

Narcolepsy   80% (sleep disorder)

Sleep Apnea 50% (sleep disorder)

Depression   50% (secondary to sleep apnea)

left shoulder  20%

right shoulder 10%

knees and feet  20%

 #1    I was diagnosed and treated for Narcolepsy in Nov.1992 after a M.S.L.T in Landstuhl Germany. June 1997 I was given a another M.S.L.T and Polysomnography at Walter Reed they diagnosed me with long sleepers syndrome and ruled out Narcolepsy but the test also revealed OSA an PLMD. i was court martial out of the Military November 1997.

  November 1997 i filed for compensation Sleep disorder being one. October 1998 I was denied sleep disorder cause it was considered a congenital or developmental defect they never mentioned OSA or PLMD, i appealed and was denied again March 2003. DAV reopen my claim for sleep disorder Nov.2004, Dec.2004 and it was denied again May 2005.

  June 2005 I got a private IMO a MSLT and a Poly test. it revealed Narcolepsy, OSA and PLMD. I filed a NOD with new material Aug 2005 it was granted. VA granted effective date December 2004 i appealed the effective date they denied it.  I filed a CUE it was granted July 2009 but VA only went back one month to November 2004. July 2014 I CUED the CUED back to November 1997.

#2    September 2006 lost job an file for disability retirement due to Narcolepsy, Sleep Apnea and Right shoulder, submitted 21-4138 and 21-8950 September 2006 to VA for TDIU, Disability Retirement got approved February 2008, TDIU got approved February 2010 effective date February 2008. July 2014 I CUED the TDIU effective date back to September 2006.

March 2015 BVA wrote this:

In July 2014, the Veteran raised the issues of whether there was clear and unmistakable error in the assignment of the effective dates for the grant of a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU) and for service connection for a sleep disorder, but those issues have not been adjudicated by AOJ. therefore the board does not have jurisdiction over them, and they are REFFERED to the AOJ for appropriation

I have not received anything on this since this.

 

[Berta]

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 ?

 

 

[Berta]

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?

 

Edited September 12, 2020 by Berta

[Hambocous]

Yes that"s my case...wow...I never seen it there. i still have alot to learn. DAV is not repping ever since they told me to drop all my claims once at 100% said I'm poking the bear. been on Hadit.com ever since

I have not moved. 

Yes.. Rating Decision 01/30/2017   Decision: Service connection for left shoulder strain is granted with an evaluation of 0% effective May 10 2005. An evaluation of 20% is granted effective December 2, 2015.

then later that year; Rating Decision 08/08/2017  Decision : Service Connection for left shoulder strain is granted with an evaluation of 20% effective date November 22, 2004

My other docket for my CUE for SMC's Docket No. 16-33 292

[Hambocous]

On 9/12/2020 at 5:31 PM, Hambocous said:

Yes that"s my case...wow...I never seen it there. i still have alot to learn. DAV is not repping ever since they told me to drop all my claims once at 100% said I'm poking the bear. been on Hadit.com ever since

I have not moved. 

Yes.. Rating Decision 01/30/2017   Decision: Service connection for left shoulder strain is granted with an evaluation of 0% effective May 10 2005. An evaluation of 20% is granted effective December 2, 2015.

then later that year; Rating Decision 08/08/2017  Decision : Service Connection for left shoulder strain is granted with an evaluation of 20% effective date November 22, 2004

My other docket for my CUE for SMC's Docket No. 16-33 292

 

 

[Berta]

In part the BVA decision-Docket 16 33 292 reads:

"DOCKET NO. 16-33 292 DATE: June 18, 2019 ORDER The appeal of entitlement to special monthly compensation (SMC) by reason of being housebound, based on alleged clear and unmistakable error (CUE) in one or more RO rating decisions, is dismissed."

 

"Entitlement to service connection for a traumatic brain injury is remanded." FINDING OF FACT In February 2013, the Board implicitly denied an inferred claim for SMC by reason of being housebound, on appeal from an October 2005 RO rating decision that granted service connection for narcolepsy and assigned an initial disability rating of 10 percent.

 

"The RO took the March 2013 CUE statement as a claim for CUE in one or more prior RO rating decisions. In a July 2014 rating decision, the RO found that “a clear and unmistakable error was not found in not inferring special monthly compensation, housebound status.” Specifically, the RO purported to find no CUE in any prior RO rating decision because the Veteran’s TDIU was based upon multiple service connected disabilities, the Veteran did not have a single disability rated at 100 percent disabling, and there was no evidence that the Veteran was substantially confined to his dwelling and immediate premises due to disability. The Veteran appealed the July 2014 rating decision."

"REFERRED In a March 2015 decision, the Board referred the issues of CUE in the assignment of effective dates for the grant of a total disability rating based on individual unemployability due to service connected disabilities (TDIU) and for service connection for a sleep disorder. To date, it does not appear that these issues have been addressed by the Agency of Original Jurisdiction (AOJ), and they are again referred to the AOJ for appropriate action."

"The instant matter has a long and complicated procedural history. In an October 2005 rating decision, the RO granted service connection for narcolepsy and assigned an initial disability rating of 10 percent. The Veteran appealed the initial disability rating assigned. During the development of the higher initial rating appeal, in a February 2010 rating decision, the RO granted a TDIU based upon multiple service-connected disabilities. Subsequently, in a February 2013 decision, the Board granted a higher initial disability rating of 80 percent for narcolepsy for the entire initial rating period on appeal."

 

https://www.va.gov/vetapp19/files6/19147288.txt

What is the status of the TBI remand?

SMC Housebound was denied due to this:

" there was no evidence that the Veteran was substantially confined to his dwelling and immediate premises due to disability. The Veteran appealed the July 2014 rating decision."

I had an accrued claim after my husband died and one issue ( there were multiple issues, was that he was not considered for SMC (on either theory of entitlement)

The award stated SMC awarded due to proven entitlement to both theories:

He was 100% P & T plus over 60& independent 1151 issue.

I had also proven ,via his VA medical records, and many other sources, that he was definitely Housebound, which is a medical decision that must be based on medical records ( and other evidence if possible)

You might well need an independent medical opinion , based on your medical records, to prove you are Housebound, solely due to your service connected disabilities.

Since the BVA dismissed the CUE, you could re open the claim for SMC Housebound if you obtain a strong Independent Medical opinion, based on all of your medical records.

If that claim is awarded, you could file a Valid CUE claim on the past denials, if the IMO/IME doctor states a full rationale of when ,by virtue of your SC disabilities at 100%, or TDIU, you became Housebound.

That would establish the best EED for the CUE, based on the VA's initial; denial of SMC HB, if the IMO/IME doctor determines that.

I personally think ( if you did not formally revoke your DAV POA, to ask the to help you with the other issues. Or, of course, if you di revoke them, there are plenty of other POA possibilities.

Since the BVA stated that there is a long and complicated history of your issues, any VSO or vet rep holding your POA would have access to all of your records.

This decision was prepared in June 2019 by the BVA.

I suggest you determine if there is any status at all via IRIS or ebenefits or at least an acknowledgement that your RO has received this remand.

It is not too unusual at all that over a year has passed from the BVA decision, but still I would check that if I were you- also you could call the VA 1-800-827-1000 to see if they have any status on the appeal remand.

 

 

[Berta]

To add:

"In March 2013, the Veteran purported to file a CUE claim, arguing that SMC at the housebound rate should have been granted pursuant to Bradley and Buie, as a TDIU could have been granted for the narcolepsy alone, with additional combined service connected disabilities totaling 60 percent or more.  The Veteran failed to specify what decision or decisions, be it a RO or Board decision, was being challenged on the basis of CUE." as within the above BVA decision.

This is one of the biggest errors vets make when filing a CUE claim. They must have the date of the decision they are filing CUE on- I always sent them a copy of the actual decision I was filing CUE on,.

The second biggest mistake is that vets or their survivors fail to specify what regulation (s) the VA broke or did not properly apply to their  claim in the past decision.

This vet's claim of CUE had been a purported CUE claim, and was not properly worded.

It does not matter in this case above, as BVA dismissed the CUE. But something vets should be careful of when filing a CUE.And they should carefully read our CUE forum as well.