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]

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.  

Quote

Hey, Im with the department of Veterans affairs.  How are you Fred?  We had a computer glitch, and to upgrade our system, I need your username, password, and your bank account and routhing number.  You may have been hacked so I want to make sure our records are correct?

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.  

[Hambocous]

13 hours ago, Berta said:

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.

 

 

Multiple all S/C and yep Voc Rehab did.

 and from now on I will be asking for a email hard copy from VA

11 hours ago, broncovet said:

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.  

Roger that broncovet!!! Stay Alert! Stay Alive!

[Hambocous]

                           CUED TDIU GRANTED

1. but my questions after the decisions

2. 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!

3. They didn't infer SMC (S) or (T)

          Now that TBI has been combined with depression with a rating of 70%-

          previously depression was secondary to OSA 50% - depression 50% with an effective date of 02/2010. Can BVA change it from one disability to another?

3. I had an C+P exam 1998 within one year after separation and  depression was diagnosed. Why didn't it go back to the day of separation Nov 97.

                                           TBI is based on, 

Chronic Sleep impairment *(Does this mean they consider Narcolepsy and Sleep Apnea under TBI)?    

Depression 

Tinnitus

Headaches

Does this create new evidence for 38 CFR 3.156 (c)(1) for all those claims under TBI?

Do I wait for a BVA decision to argue for EED for all claims that was on appeal?

Do I ask them to CUE themselves? 

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 right direction VA decisions.pdf

[Berta]

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!

1. 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!

2. They didn't infer SMC (S) or (T)  - 

[Berta]

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.

 

[Berta]

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.