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.

 

[broncovet]

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

This means you cant leave the home to earn an income, as opposed to not leave the home at all.  

quote from Howell vs Nicholson:

https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/

[Berta]

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.

 

 

Quote

 

 

Edited September 14, 2020 by Berta

[Hambocous]

TBI GRANTED !!!

First; I would like to thank you, thank you, thank you both for your input an knowledge.

Second; Berta and broncovet you were both right my CUE was not properly calibrated. I didn't quote the regulation or the Law. I was all over the place with emotion. My shot group was not tight.

That day you both commented on my question must have shook something loose they granted my T.B.I at 70%, secondary to T.B.I migraine headaches at 10% and granted tinnitus at 10%. (see attach) 

What was surprisingly weird was, for my  remanded T.D.I.U. and sleep disorder pending claim was that someone from VA working from home in Honolulu (because of the pandemic) contacted me personally wanting confirmation of my SS and birth date to talk about my case and I said "these lines are not secure for that classified info. she then said to upload any evidence I have to ebenefits " (is that unusual or am I just paranoid)?

 

Would CUEing and sending in evidence for the denied June 2019 SMC decision be advisable right now? or reopen with new evidence? because VA has not address S.M.C. even though the current grant of 70% T.B.I. puts me into the S.M.C. range....I received nothing in writing from VA yet.

 My S.S.D.I Hearing decision, VA form 21-2680, VA form 21-0960C-8, Voc Rehab letter, VA Mental health IMO and mental impairment questionnaire, 2 Lay letters, private and WRAMC Neurologist IMO/IME, all states "I need aid and attendance and assistance. it's all in my file.

 

scan_20200924184748.pdf

[Tbird]

Wonderful news

[Berta]

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.

 

 

[Berta]

To add you said:

"What was surprisingly weird was, for my  remanded T.D.I.U. and sleep disorder pending claim was that someone from VA working from home in Honolulu (because of the pandemic) contacted me personally wanting confirmation of my SS and birth date to talk about my case and I said "these lines are not secure for that classified info. she then said to upload any evidence I have to ebenefits " (is that unusual or am I just paranoid)?"

I always have VAOLA Paranoia-but yes I feel this call was legitimate- but years ago a VARO employee was fired for taking VA claims to his home to work on them- everything has changed due to COVID-

A call I got from the RO years ago regarded some evidence I had sent to them- The man said yes we have it- but I asked him what he had-and he briefly rattled it all off -so I knew they had it,

But they never considered any of it- I have a CUE pending on that issue.

Of course it was bonafide and probative evidence. 

Also I always suggest to anyone contacting IRIS, to ask for their reply in email instead of by phone, ( that way the claimant has hard copy proof of what they said.)

 

 

 

 

Edited September 25, 2020 by Berta
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