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.

 

[Hambocous]

19 hours ago, Berta said:

What did SSDI award on?

 

2009 SSDI states:  

The claimant has the following impairments narcolepsy with cataplexy; obstructive sleep apnea; rotator cuff tear of the right shoulder with acromioclavicular joint arthrosis, status post arthroscopic repair of rotator cuff tear with acromioplasty and clavicle excision in April 2005; recurrent right shoulder rotator cuff tear in the anterior supraspinatus tendon diagnosed in early 2007 with evidence of significant artifact from his mental anchor in this region; depression; and post-traumatic stress disorder (20 CFR 404.1520 (c).

Due to symptoms/ signs of narcolepsy, the claimant is not able to drive or sustained wakefulness/alertness on a consistent basis throughout an 8 hour workday. Due to the severity of his sleep mental disorders, the claimant is limited in his ability to maintain concentration, which restricts him to no more than unskilled simple tasks. Secondary to orthopedic problems, the claimant is limited in his ability to lift/ carry at more than the light level of exertion and he is unable to use this right upper extremity for reaching activities or tasks that require significant repetitive movements. Considering all of the evidence of the record, especially in view of the severity and persistence of the claimants narcolepsy and sleep apena, the undersigned concludes that the claimant is unable to sustain work activity at even the sedentary level for eight hours a day, five days a week or an equivalent work schedule. 

2014 SSDI states:

Does the Claimant have a severe impairment? YES

The claimant has diagnosis chronic adjustment disorder with depressed mood, post-traumatic stress disorder (PTSD), major depressive disorder, narcolepsy with cataplexy, torn rotator cuff bilaterally, rheumatoid arthritis, obstructive sleep apnea, limited motion of arm, hyperlipidemia, and chronic low back pain These impairments impose more than  a minimal effect on his overall ability to do basic work activities. Therefore, it is concluded his impairments are more than non-severe

19 hours ago, Berta said:

Can you give us the breakdown for the TDIU award?

 

Berta I want to thank you first for taking the time you are truly Precious!!! im learning alot from the CUE form Im no where near as knowledgable as you and some on here this was a quick reference of my TDIU

Narcolepsy required 2 naps throughout the day USPS could not accommodate retired on 

disability due to Narcolepsy and sleep apnea 9/2006.

Applied for SSDI and TDIU same date 09/2006, ( Narcolepsy 10%, OSA 50%,  knees and feet 20% shoulder 10%) and filed claim for Narcolepsy increase.

First came SSDI approval 2/2010 effective date 09/2006, submitted SSDI approval to VA TDIU claim..specified Narcolepsy and sleep apnea.

Second came USPS approval for disability retirement in 2010 effective date 02/2008 submitted that to VA TDIU claim, retirement specified Narcolepsy and sleep apnea.

Third VA approves TDIU claim in 2010 effective date 02/2008 based on a combine rating.

BVA 02/2013 decision approve Narcolepsy increase to 80%

Applied for EED for sleep disorder and TDIU 2014

22 hours ago, Berta said:

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?

 

 

The earlier effective date for sleep disorder and TDIU sat around for years. With my 2006 increase for narcolepsy at BVA; it came back from BVA in 2013. During that time TDIU was denied twice 12/07,10/08 and thereafter granted 2010 with ED 02/08. Subsequently, I filed for an “earlier effective date” for sleep disorder and TDIU; that's when I made a (boo boo) an failed to specify the RO decision I was CUE.ing

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

They let the TDIU and sleep disorder sit for years because of that belief, until the TBI and SMC appeal came up to BVA. Then the Board realized that TDIU and sleep disorder were never adjudicated by AOJ therefore BVA remanded TDIU and Sleep disorders to AOJ including TBI and dismissed SMC at the housebound rate. 

That's where I am right now. AOJ granted the CUE for EED for TDIU denied Sleep disorders EED and they granted TBI combined with depression (removed depression from secondary to OSA) with headaches and tinnitus. See decision 

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.

It's two ways to get SMC and I meet them both and I’m going to therefore ask for a Sympathetic Broad reading and that they respectfully CUE themselves. (smile)

 

The BVA decision you shared showed me a path for my situation however my narcolepsy started while in the military and ended my military career because of it. I needed aid and assistance because of it while I was in the military. I had witnesses as well as doctors stating that. 

   https://www.va.gov/vetapp09/files4/0935536.txt you think this BVA decision is geared more towards my TDIU situation.

 

[Hambocous]

VA Fast letter 13-13 dated June 17, 2013 states       

    properly considering an appeal that involved 

TDIU

 

If	And	Then
The Veteran has filed a Notice of Disagreement (NOD) regarding an increased evaluation for a service-connected disability	While the appeal is pending, the Veteran claims TDIU due, at least in part, to the disability on appeal  AND  the rating decision denies the TDIU claim	The TDIU claim is   now part of the  pending appeal.  VA should send the  Veteran a Statement of the Case (SOC)  Or Supplemental Statement of the Case (SSOC)  regarding the TDIU
Veteran	Veteran	Veteran
Filed notice of Disagreement received April 21, 2006 for Narcolepsy	Claimed TDIU September 20, 2006  (see Evidence in  DRO decision  February 16, 2010)	VA failed to make TDIU a part of the pending appeal see Supplemental Statement of Case  October 10, 2009
	VARO decision December 17, 2007  TDIU denied
	VARO decision  October 10, 2008  TDIU denied

 

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.

[Berta]

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.

 

 

 

 

 

 

 

[Berta]

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.

 

[Hambocous]

 

 

9 hours ago, Berta said:

id 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---

Keep the questions coming i love it, and thank you,thank you im learning

Yes I did formally appeal that specific denial of TDIU on a I-9, the TDIU was granted now its going back to the BVA. 

Yes the narcolepsy and OSA prevented me from being substantially employed and the complications of PTSD, depression, anxiety, mood disorder and panic attacks also

Question: would it be smart to ask them to CUE themselves at this point of the appeal even its going back to BVA?

I would pay for an IMO/IME if I could find an honest doctor. 

Narcolepsy is at 80% stand alone Docket # 08-02-004

OSA 50% 

Depression was 50% secondary to OSA

TBI granted at 40% VA combined it with depression 50%=70% overall

 Voc Rehab 12/2008 letter stated”” according to his medical records he has a disability of narcolepsy and sleep apnea he also has a severe case of cataplexies. He suffers from depression that is secondary to narcolepsy. Workevaluation was  for 10 days  he only completed 6 days due to his narcolepsy evaluation. He is unable to maintain and sustain employment with reasonable consistency . Please be advised as a Voc Rehab. counsel in my professional opinion is highly likely more likely than not that the veteran is not able to work at all due to narcolepsy and sleep apnea. I would encourage Social Security to seriously consider him for SSDI benefits.”   

  Because I didn't understand the courts(still learning) I find that amazing you only been to BVA once. I feel a little bad now. Am i doing something wrong? I think this is my third or forth BVA. I always thought that I had to go to BVA. after a denied VARO decision

 if I had a pinch of your wisdom at my day of discharged i wouldn't be at this stage. Listening to DAV, letting appeals expire, not putting in claims cause DAV said don't  overwhelm the system etc. 

My story is a unique one. Long but interesting. From a broken neck in College (2,3,7 vertebrate called the hangman's fracture) playing football, to fighting the Military, and the USPS for re-injurying my head and fighting them for benefits. I realize bad things happen to good people. It doesn't change who you are, it reveals who you are. I don't know how to let go once engaged. All of us have been lied to, misled and cheated it either deflates you or emboldens you. I'm embolden.by your story and fight, the veterans here embolden me by the different methods and ways they over came.

[Berta]

Thank you !!!!! for answering my questions, I have been waiting for a few members to answer questions I had, for weeks , and I guess they won’t do that.
This has been a problem for me for years here- but usually with widows claims.
They are the same questions any good Vet rep, VSO, or vet lawyer would ask them.

That decision ( Docket # 08-02-004) is truly one of the BEST CUE awards I have ever seen!!!!!!!!!!!!!!!
https://www.va.gov/vetapp13/files1/1303957.txt
You said: 
“Yes the narcolepsy and OSA prevented me from being substantially employed and the complications of PTSD, depression, anxiety, mood disorder a the narcolepsy and OSA prevented me from being substantially employed and the complications of nd panic attacks also”
The narcolepsy and OSA…..and your evidence supports that----
We need some members here who understand funny VA math-
Narcolepsy at 80% and OSA at 50%-how is that rounded off?
Did the VA ever say why that did not bring you to 100%?
Question: would it be smart to ask them to CUE themselves at this point of the appeal even its going back to BVA?
I have no access to your decisions and do not know what  decision you would file the CUE on…..
There is so much here to digest already-Can you scan and attach here the decision you feel holds another CUE? (Cover C file #, name prior to scanning it)
Personally I think , if it regards the BVA appeal going back to the BVA, you could raise that as evidence in that appeal- but then again I am not sure on that.

In 2003 the VARO violated my rights with an illegal VCAA letter.Multiple reps from my former POA ( a state org) told me I was wrong. I even had a letter from the Director of this outfit telling I was wrong.
I filed a 43 page complaint with the OGC and an additional complaint with the Governor of NY ( their boss) those dopes are all gone now and best of all -their director was replaced Very fast.!!!!!
I raised this error in my appeal with the BVA. The BVA agreed with me. But they awarded anyhow as I had overcome the illegal VCAA notice ( now the 5103 waiver) with Probative evidence and rendered the illegal VCAA situation as moot due to the award.
It might be best to raise the CUE  issue you are mentioning here, with the BVA- 
The BVA accepts evidence up until the day they decide the claim.But I don’t know if that would be a good idea.
I could not CUE the Regional Office on the VCAA error because it is a Duty to Assist  situation- those cant be cued.

“I would pay for an IMO/IME if I could find an honest doctor. “
They are out there!
You asked :” Because I didn't understand the courts(still learning) I find that amazing you only been to BVA once.” That case regarded my Marine CORPS husband.
Actually I had filed what I thought was a valid CUE LONG ago at BVA and they said it was not a well grounded claim.They were right. I believe this was regarding my Army husband’s death (1981)
I had absolutely no idea what the claims process involved and realize now that a surgeon , who operated on him, could have possibly given me the evidence I needed, based on something he had said about my Army husband’s brain tumor. My veteran ( USAF) daughter was still in diapers when he died.
The VA denied the claim but awarded me a widows pension but then stated that, due to my income,SSA Mother’s survivor benefits due to the Army husband’s death, I would not be eligible for the wartime pension amount.
Three years later I became a VA volunteer at a vet center- and is when I got involved in understanding the VA claims process. I was part of Vet Link NY in the early 1980s and was at Prodigy Veterans BBS for many years, on other web sites as they began to open on the net re: veterans, and then came here in around 1997.
Also I have purchased the annual  VBM many times since 1991. And fortunately ALL BVA, CAVC, OGC opinions, etc etc and now on the internet, as well as 38 USC,38 CFR,and M21-1MR.
Year ago I often urged vets here to try to get a good decision out of their ROs. After many denials on every claimI had, I did get good decisions out of my VARO most of the time but had to CUE them right away for some of those awards.
I forgot I also had filed a I-9 at the BVA on something- forget what claim it was, VA said years ago- I have had 53 issues with them – that does not include the 3 issues I have now.
In the BVA case I forgot, I got a nice letter from the BVA who said since I had won that claim already, at the RO there was  no need for appeal. It was my dumb Ass DAV NSO who never withdrew it from the BVA. I sued him but that is a long story. I got what I wanted.
There are things here I do not understand and wonder if the VA did their funny math the wrong way.
I am no expert on that but others here are and I hope they look over your ratings, because the OSA is separate from the Narcolepsy but if it was deemed as secondary, I think that should have garnered the 100% award for it……..
Or did any decision state TDIU for Narcolepsy with OSA????

“Narcolepsy is at 80% stand alone Docket # 08-02-004
OSA 50% 

Depression was 50% secondary to OSA
Can anyone else chime in?
This veteran certainly has been through the mill with VA and I well know what their “mill”is like.
The VA seemed to think we widows are stupid and hope we get a lousy VSO or vet rep.
I did far better without anyone on my POA.And even though I could not get a lawyer or IMO doctor to help me in 1995, I proved the VA caused my USMC husband’s death.(FTFA/1151) and then I proved they caused the death of an AO veteran , malpracticed on  3 AO disabilities and that changed Everything!!!!
The VA claims they have no record of 2 of my pending claims.WH Hot line verified there is no record of them received.I have proof they received them but have to refile them again.
I have been on this road before- and have to put more time into my issues because one of them will favorably affect a certain group of veterans and survivors, as well as me.No wonder they say they don’t have that claim.The other one is a no brainer, easy as pie-but I will have to  refile it again.
Everyone -Make sure your spouses are up to speed on the internet and has a good idea about what your pending claims involve.And that they have your password to get here if you die.
A few hours before my USMC husband suddenly died (due to malpractice) he told me he was quite worried if he died with 2 claims in progress , that he wanted me to continue , because he feared that VA would give me a very hard time.
He was right. But I gave them a very hard time, and I believe they treat many widows the same way, many who probably just give up.

His concern was that when he became employed by the VA they tried to lower his PTSD rating. I wrote the NOD and they restored it.I used the exact regs they used for the reduction ,to prove how ridiculous their proposed reduction was.

His posthumous award was 100% P & T SC for PTSD, with a favorable EED back to 2 years after the proposed reduction...from 30 to 10%.

We MUST FIGHT BACK!!!!!!

I hope others will chime in here on those ratings- and that CUE award is spectacular.