Recondo@53

Thank you so much. I’ll make sure to pass the same time and kindness to others I can, just as you so do.

I have enough bad experiences with VA to believe what you’re saying. With that, as I looked closer and investigated the C&P, how I think he got away with it is he wrote, “No response provided”. My argument now is shaping around the fact that the medical opinion provided was not based on the factual representation for PTSD as he should have questioned why there was no responses provided. I’ve requested credentials and the medical opinion to the the C&P exam. It should get interesting.

Well, I hope to avoid that when I send in a statement asking them to apply according to 38 U.S. Code§ 5110.Effective dates of awards, which I found on this site. But yes, I won’t hold my breath. Thank you for your time, sir.

Well, they already are. But that isn’t a concern to me. My issues are what they are and have a historical pattern of not getting better. That’s a lot of back pay my family loses out on because of their error. I understand what your saying, but they are held to do the right thing, and need to in every event. That’s the square deal. Appreciate your time and insight.

Thanks, everyone. @pacmanx1 the 60- day for a form 9, but my understanding (which isn’t much) from what I read, I have up to a year to appeal the decision. Since they didn’t have that evidence prior to making a decision, my hope is that they would approve back to date of claim for effective date. It’s very frustrating with the C&P examiners. I’ve read the court has held that a veteran needing to lie on his back for an extended period of time equates to prostrating attacks. In my C&P exam that was used for 0% stated I have to remove myself from work for 1-2 hours to lie down. Yet the examiner for the migraines/non migraines prostrating question, checked they were not prostrating. Appreciate your help and time!

Original claim was filed in 2017. 2018 0 percent rating in which I filed a NOD. Submitted statements and chronology of evidence which VA denied excess rating as noted above. I missed the 60 day window, but remembered the new material evidence which clearly links prostrating attacks and an economic in-adaptability. I believe the evidence is clear and should be back dated and paid to 2017 claim, considering the previous exam is conflicting with what the courts have held with regard to needing to lie down and the weight of evidence in favor of me, I’m confused for the reason of this new exam. What barring would it have in the historical evidence they already have? Thanks for your time!

Hi, another one for you here. Denial of entitlement to an evaluation in excess of 0 percent for migraine headaches, Jan 2020. Reason for denial by De Novo review as follows: "We have reviewed the evidence and found it does not support you experience prostrating attacks that would warrant an evaluation in excess of 0 percent. While your testimony is credible, the probative evidence does not show your reported symptoms cause extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities, or result in substantial work impairment." With that, I submitted new material evidence Nov 2020 by rehabilitation hospital M.D. who reported I have 5-7 headaches a week that require me to lay down for over an hour and take medication. He also noted aura and vertigo and my headaches where hard to control. In my supplemental statement of case, I requested them to review my ER visit for Migraine and the following day I presented as a walk in to Primary Care because it came back. I also noted in the original C&P exam in which the examiner stated they were not prostrating, but he also mentioned that I have weekly headaches where I have to lie on the ground for an hour or two affecting my work. All notes, ER visit 2016, C&P exam dated 2018 and new material evidence dated 2019 provides consistent periods of prostrating events and asked them to review as such. I also provided evidenced-based clinical literature showing productivity and impairment, and financial impact due to migraine but also requested VA to consider whether the migraines where at least capable of producing severe economic inadaptability and not just actually produces as the court has held they need to assess both. With that, just as of today, I get a call from LHI stating they need to schedule me a C&P exam for headaches. However, the last exam was just done 2018. Why would they do this and what is my course of action? Thank you taking the time to help!

Hi, I am currently on appeal for increase rating in excess of 50% PTSD (rated as Specified Trauma and Stressor Related Disorder) and the case was remanded by BVA back to the RO. The initial PTSD C&P was done in 2014. The original rating was not rated as PTSD, but Specified Trauma and Stressor Related Disorder. A new exam was requested and completed October of 2020 and I was awarded 100% PTSD. I contested the rating as VA denied a rating of excess of 50% prior to September 2020. The RO stated the following, "The evidence does not support a change in the prior decision. Therefore, entitlement to an evaluation in excess of 50 percent prior to September 2020 for post-traumatic stress disorder (previously rated as specified trauma and stressor related disorder) is denied. The rating decision noted that the examiner diagnosed me with PTSD and it was a correction to my prior examination. Here is where it gets odd. After I got the denial of excess of 50%, I started scrolling through my C-File. Well, I noticed on the initial C&P for claimed PTSD, the C&P examiner missed 2 criterion for DSM-V. My understanding is that I am entitled to a complete exam and the medical opinion is based on the C&P, which if was incomplete that would warrant an incomplete medical opinion. Since the appeal up to date, my historical evidence and symptomology and social and occupational impairment has aligned to 70-100%. It is clear as day in my C-file. The mistakes on the exam were missed by VSO, attorney and BVA. My question is what is my best course of action for this? Thank you kindly!

How are you filing a Writ of Mandamas? Doesn't that have to be submitted by a court of law?

Ironically, I am citing this very case in my current BVA appeal. Too funny. What really bothers me though, with the out dated schedule and appeals process is that the VA convolutes everything for the veteran by having conflicting guidance. Like for example, the board states that, "The effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. See Lalonde v. West, 12 Vet. App. 377 (1999); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000)." However, the VA on its website also clearly states, " The date entitlement arose means the date the condition was shown to exist by medical evidence." And the date entitlement arose is used as a way effective dates are assigned for direct-service connection.

Thanks for your response again, Berta. The article isn't matching up with "whole picture" of CFR with regard to Direct Service Connection. Yes, I hope more will chime in because something is clearly going on. I really appreciate the site and glad I found it! §3.400 General. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. (Authority: 38 U.S.C. 5110(a)) (2) Disability compensation: (i) Direct service connection (§3.4(b)). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated.

Thank you for your response, Berta. What also was strange was the fact that I got an original decision letter dated 10/14/2015, with a disability deferred. In the decision letter 10/14/2015 it states, " VA Form 21-526 EZ: Application for Disability Compensation and Related Compensation Benefits received 08/05/2015. This claim was initiated on September 13, 2014 for dermatitis, sleep apnea, GW diagnosed illness and unexplained chronic multi-symptom illness, and increase for chronic sinusitis. Therefore, the date of claim for these issues will be September 13, 2014. I have attached a picture for review. Before decision, I had sent a statement that they were incorrect in combining both intent to files. I also informed them that my FDC was within one year of active duty release. I have attached that as well. What bothers me is that my attorney didn't catch this... I love how they get away with the low rating for "systemic" therapy use for eczematous dermatitis. The steroid cream I use is more dangerous than the pill medications they prescribe, yet if on pills I would possibly merit a higher rating. Also, I have NODS in for previous fully developed claims that they included in this decision letter. It seems fishy and FUBAR. Thanks for your service and kindness in helping me. 09 04 2014 claims date letter of error_Redacted.pdf

Hello, I have a question on a possible CUE. I completed a FDC within one year of starting it. In that one year timeframe, my now terminated VSO, also filed an intent to file(s) with out my authorizations. Now, § 3.155 gives clear guidance from the secretary that the VA will not recognize more than one intent to file for the same benefit. On completion of my FDC on Ebenefits, the RO combined both claims 08/06/2015. My FDC was started 09/04/2014 and completed 08/05/2015. Also, my FDC falls within a year of getting released from active duty service. The VSO submitted intent to file(s) dated 05/12/2015, 05/30/2015, and again 06/05/2015. ALL WITHOUT MY AUTHORIZATION and all overlapping my intent to file already in Ebenefits. I was granted service connection for a few disabilities, but the RO made my effective date of 08/05/2015. 1. RO clearly never followed § 3.155. 2. § 3.4 (b) states effective dates for direct service connection are day following separation from active service. 3. Shouldn't my effective date be the day following release from active service? Which would be 10/01/2013.(release from service was 09/30/2013) 4. Is this grounds for CUE? 5. I have not submitted my NOD yet. Do I need to submit NOD and wait on CUE after Statement of Case? Thank you so much for your help!

How long should a statement of case take after filing a NOD?