BlakePaigeStone

To: HadIt.Com Spoke with my VA contact, yesterday, and was informed that my remanded appeal was transferred ...from the Appeals Management Center, (AMC), to my VARO. Is it a positive development? Can the AMC have sent me a SSOC if they thought it wasn't a valid argument? I was also told, that... the VARO has 30-days or less to make a decision on the remanded appeal from the BVA, via the AMC. Is that true? Regards

This remand is currently located at the 'Appeals Management Center.' As I enter year number-six of this claim/appeal, (see following) ...I'm seeking 'any-and-all' input/advice. Citation Nr: Decision Date: 06/12/15 Archive Date: 06/19/15 DOCKET NO. ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Whether there was clear and unmistakable error (CUE) in the July 2002 rating decision that granted an effective date of May 30, 2002 for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which determined that there was not CUE in a July 2002 rating decision of the Philadelphia, Pennsylvania RO, granting a TDIU effective from May 30, 2002. Since May 2010, the Veteran has argued for an earlier effective date. The Board notes that in August 2014, the Veteran requested that a copy of his claims file be sent to his attorney, and in February 2015, the Board complied with this request. However, it is noted that at present the Board recognizes only Veterans of Foreign Wars of the United States as his accredited representative in the matter on appeal, in accordance with the VA Form 21-22, Appointment of Veteran's Service Organization as Claimant's Representative, which the Veteran filed in September 2013. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Philadelphia RO granted service connection for posttraumatic stress disorder (PTSD, the Veteran's sole service-connected disability) in a July 2002 rating decision, and assigned the following ratings: a 30 percent rating, effective September 1, 1995; a temporary total rating under 38 C.F.R. § 4.29, effective September 13, 1995; a 30 percent rating, effective January 1, 1996; and a 70 percent rating, effective May 30, 2002. In the decision, the RO also granted a TDIU rating, effective May 30, 2002. The Veteran did not file an appeal with the decision regarding the rating assignments or effective dates, and the rating decision became final. Once a rating decision that establishes a disability rating and its effective date becomes final, the only way that such a decision can be revised is if it contains CUE. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). In a May 2010 statement, the Veteran alleged that the RO committed CUE in the assignment of the effective date for the TDIU award, arguing that the correct effective date should be retroactive to 1995 when he was awarded service connection for PTSD, based on VA medical records showing total disability (e.g., in December 1995 VA hospital records include a diagnosis of PTSD, chronic, with unemployability). The Honolulu RO denied the CUE claim in the October 2012 rating decision. However, in numerous letters and email correspondence, such as those in January 2011, October 2011, November 2012, October 2013, January 2014, February 2014, and April 2014, the Veteran has argued that his CUE claim was essentially misconstrued, and that he felt the RO in July 2002 erred in the rating assignment for his PTSD. He maintains that based on VA medical reports that were ignored or overlooked at the time, the RO should have assigned an initial disability rating of at least 70 percent, rather than 30 percent, for his PTSD effective from September 1995. He further states, in October 2013, that the higher initial rating for PTSD would then result in a "subsequent adjustment" of the TDIU effective date such that it would be much earlier than May 30, 2002. As the CUE claim with regard to the initial disability rating for PTSD is inextricably intertwined with the CUE claim on appeal with regard to an earlier effective date for the grant of a TDIU, it should be adjudicated before proceeding to consider the proper effective date for the TDIU. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the claim of whether there was CUE in the July 2002 rating decision that granted service connection for PTSD and assigned initial ratings as follows: a 30 percent rating, effective September 1, 1995; a temporary total rating under 38 C.F.R. § 4.29, effective September 13, 1995; a 30 percent rating, effective January 1, 1996; and a 70 percent rating, effective May 30, 2002. Note that the Veteran argues that the proper initial rating for PTSD should be at least 70 percent, effective in September 1995, based on VA clinical findings (see, e.g., the Veteran's substantive appeal statements in October 2013 for citations to VA records to support his claim). 2. After the development requested above is completed, readjudicate the claim of whether there was CUE in the July 2002 rating decision that granted an effective date of May 30, 2002 for the award of a TDIU. If any benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case, afford them opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2014).

HadIt.Com -- What is an average waiting period, for a 'S.O.C.' mailing ...after that entry has been made, on the eBenefits website? ('claim progress section') -- Date of the change, ('DRO'), was September 12, 2013. Is that the date which the DRO started reviewing one's case/appeal?

Berta; I just noticed, on my eBenefits page, that the appeal now, (as of September 12, 2013), has an 'SOC' notation in the status category. I'm now waiting for a letter from my VARO-Honolulu; and ...will update you as soon as I get it ...and do a complete review. Regards, Sonny *I was wondering if the following statement makes my case: -- After a seven-year legal battle, with the VA …about my awarded service-connection benefits, I didn’t have the mental capacity, (due to my Vietnam-related, PTSD-Chronic condition), to desire anymore contact with the VA ‘…about anything,’ period! Even though, my ‘initial rating-decision’ was wrong; veteran failed to file an appeal; timely, or …otherwise. This was due to ‘PTSD-related avoidance issues.’ Therefore… I need to develop my medical records from my 1995 VAMC hospitalizations, in ‘…VAMC-Coatesville, and VAMC-Lyons,’ showing ‘mental’ issues which interfered with thinking ability …to appeal. I also need to show what CUE was made by the VARO-Philadelphia, in assigning a 30% initial rating-decision, for the period from September, 1995 …to May, 2002. My initial should have been rated at a minimum of 70%; and …my TDIU subsequently awarded shortly thereafter! (I was diagnosed, after discharge from the VAMC-Lyons, inpatient PTSD program …with ‘PTSD-Chronic w/Unemployability’ …in December, 1995) After seven years, an award of 30% service-connection was granted, in July, 2002 …for period in question: ‘September, 1995 …to May, 2002.’ Initial award should have been… ‘70% w/TDIU.’ (Awarded May 30, 2002) This is the Supreme Court decision in Henderson: http://vetlawyers.com/vetblog/index.php/2011/03/united-states-v-henderson-562-u-s-___-2011/ I searched the BVA under “missed deadline” and found this case: http://www.va.gov/vetapp07/Files3/0725309.txt In Part: “In Barrett v. Principi, 363, F.3d 1316 (Fed. Cir. 2004), the U.S. Court of Appeals for the Federal Circuit held that, for the purposes of determining whether a claimant timely appealed to that particular court, equitable tolling is available where a veteran is able to show that the failure to file was the direct result of a mental illness that rendered him incapable of rational thought or deliberate decision making, or incapable of handling his own affairs or unable to function in society. Id. At 1321.”

Broncovet; Thank you for taking the time to submit your input. Like you, I have considered, many times, the possibility of my efforts of my 'CUE claim/appeal,' as being, a... 'complete waste of time!' Then, I'll ...unexpectedly, come across a 'BVA, CAVC, or U.S. District Court' decisions ...which granted the veteran his/her full sought-after benefit! The 'one-year-plus' time-period, which I waited for my VA claims file to be sent to me ...gave me plenty of time to 'research' various final opinions/decisions, (by the above-mentioned agencies), that dated back as far as WWII. Those cases convinced me not to give-up! One such instance is, as follows: ‘CUE’ …by the VARO adjudication department …for ignoring ‘38 CFR 4.16C;’ which was in effect in 1995, and wasn't dropped until… ‘Oct or Nov, of 1996’ Gerald M. Hohol, Appellant, v. Edward J. Derwinski, Secretary of Veterans Affairs, Appellee. 2 Vet App 1692 Vet. App. 169; 1992 US Vet App LEXIS 401992 U.S. Vet. App. LEXIS 40 No. 90-1002 February 7, 1992, Decided UNITED STATES COURT OF VETERANS APPEALS Before NEBEKER, Chief Judge, and KRAMER and HOLDAWAY, Associate Judges. February 7, 1992, Filed Counsel Michael P. Horan was on the brief, for appellant Robert E. Coy, Acting General Counsel, Barry M. Tapp, Assistant General Counsel, Pamela L. Wood, Deputy Assistant General Counsel, and Michael P. Butler were on the brief, for appellee. Opinion Editorial Information: Prior History On Appeal from the Board of Veterans' Appeals Opinion by: NEBEKER {2 Vet. App. 170} NEBEKER, Chief Judge: Appellant, Gerald M. Hohol, appeals the May 23, 1990, Board of Veterans' Appeals (BVA or Board) decision which reduced his disability rating for post traumatic stress disorder (PTSD) from 100% disabling to 70% disabling. We hold the Board's finding that the veteran had sustained material improvement under the ordinary conditions of life to be clearly erroneous. Furthermore we hold that the Board committed legal error when it failed to consider appellant's case under _CFR_4.16 38 C.F.R. § 4.16© (1990). I The veteran performed military service from August 1965 through April 1969, which included combat duty in Vietnam. On December 30, 1983, he underwent an examination for compensation and pension purposes. The Veterans' Administration (now the Department of Veterans Affairs) (VA) doctor reported that appellant was "markedly tense" and anxious, that his sleep pattern was disturbed by nightmares, and that he hallucinated often. R. at 23. The doctor also found appellant "alert and fully oriented" and his conversation "to be relevant [showing] no looseness of associations." Appellant was diagnosed as suffering from PTSD. Based on this examination, the VA Regional Office (RO) granted appellant service connection for PTSD, and rated it as 100% disabling on February 1, 1984. Appellant was examined again for compensation and pension purposes on April 19, 1985. He reported that he had trouble sleeping and suffered from hallucinations of his time in Vietnam. He also told the examiner that he had no social life and spent all of his time caring for his two boys; his speech was relevant and coherent. R. at 38. The examiner found him to be unemployable and still suffering from {2 Vet. App. 171} PTSD. On May 22, 1985, an RO decision continued his disability rating at 100%. On October 12, 1988, he was examined again by VA. Again he reported sleep disturbance, constant thoughts of the war, and nightmares. He also reported having trouble with most people, but being tolerant of the ill and those he was capable of helping. The report described him as "cooperative, coherent, relevant, well oriented, competent, tense and anxious." The report also noted that appellant had not worked for eight years, and was seen weekly at the Mental Health Clinic at the Bay Pines Facility (Bay Pines Facility). Appellant was again diagnosed as suffering from PTSD: "chronic, active, mild to moderate." R. at 41-42. Based on that examination, and without considering medical records from the Bay Pines Facility, the RO reduced appellant's rating from 100% disabling to 70% disabling. The RO made no mention of any regulation other than _CFR_3.105 38 C.F.R. § 3.105(e) (1988), but said that medical records from the Bay Pines Facility were being requested and that appellant would be reexamined in the future. R. at 43. On December 14, 1988, appellant received a letter from VA which told him that VA had "determined that there has been an improvement in your post-traumatic stress disorder. This disability is now evaluated 70 percent disabling." R. at 68. Appellant submitted a notice of disagreement on January 18, 1989, and asked VA to obtain all of his medical records from the Bay Pines Facility. VA sent appellant a statement of the case specifying the issue as "increased evaluation for service connected [PTSD]", citing 38 U.S.C. § 355, _CFR_4.132 38 C.F.R. § 4.132 , _CFR_3.102 38 C.F.R. § 3.102 , and _CFR_3.321 38 C.F.R. § 3.321 (1989) as the grounds for denying the veteran an increase. R. at 71-74. A rating decision dated April 20, 1989, confirmed the 70% rating. R. at 75. Medical records from the Bay Pines Facility disclosed that appellant began treatment in October of 1984. Dr. Leo R. Ryan, a clinical psychologist at the Bay Pines Facility, reported that as of December 27, 1988, appellant's "condition [remained] chronic and severe." R. at 64. Dr. Ryan also noted that appellant had "marked sleep disorder and frequent and intense nightmares which in turn [produced] fatigue and [augmented] his chronic major depressive state." Id. On January 3, 1989, Dr. Ryan wrote that appellant was unemployed and "it [appeared] unlikely that he will be able to obtain or maintain gainful employment due to the depth of his psychopathology." R. at 66-67. When these records were reviewed, VA issued a supplemental statement of the case. R. at 77-79. A rating decision dated June 26, 1989, continued the 70% rating. R. at 80. On July 13, 1989, appellant appealed to the BVA. In his appeal form, appellant wrote that he was totally isolated from the community, visited his doctors once a week, and was totally unable to obtain or retain employment; he requested that VA obtain additional outpatient treatment records. R. at 81. On March 31, 1989, VA issued yet another supplemental statement of the case. R. at 84-86. Appellant underwent a special neuropsychiatric examination on October 30, 1989. The examiner reported, inter alia, that appellant suffered from PTSD and was unemployable. R. at 108-109. A subsequent rating decision dated November 21, 1989, continued the 70% rating. VA issued another supplemental statement of the case on December 1, 1989. On May 23, 1990, the Board confirmed the 70% rating. Although the Board phrased the issue on appeal as entitlement to an increased rating for PTSD, the Board noted that the veteran's appeal stemmed from the December 1988 rating action which reduced his 100% schedular evaluation to 70%. Consequently the Board's decision focused on the correctness of the December 1988 rating action. The Board applied _CFR_3.343 38 C.F.R. §§ 3.343 and 3.344 (1990) and found it clear from the record that there has been a material improvement in pertinent aspects of [appellant's] disability picture, at least to an extent that he no longer experiences totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, nor is he demonstrably unable to obtain or retain {2 Vet. App. 172} employment, despite his not having worked for a period of several years. R. at 8. II PTSD is rated under _CFR_4.132 38 C.F.R. § 4.132 , Diagnostic Code 9210 (1990)(DC 9210) which characterizes 100% and 70% disabilities as follows: 100 percent: Active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. 70 percent: With lesser symptomology such as to produce severe impairment of social and industrial adaptability. . . . Once rated as totally disabled (100%), a veteran will not have his rating reduced without a showing of material improvement: a) General. Total disability ratings . . . will not be reduced . . . without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of the record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest. . . . _CFR_3.343 38 C.F.R. § 3.343(a) . In appellant's case, VA failed to show, through an examination, as required by section 3.343(a), that appellant had materially improved, based on the record and under the ordinary conditions of life. The regulation provides that VA must compare the examination which purports to show that the veteran's condition has materially improved, with the last examination continuing his 100% rating. The basis for comparison is not the examination on which the veteran was first awarded total disability. Karnas v. Derwinski, 1 Vet.App. 308 (1991). A comparison of appellant's last examination report of October 12, 1988 (1988 exam), which reduced his 100% rating, with the next-to-the-last examination of April 1, 1985 (1985 exam), which maintained his 100% rating, shows no indication of material improvement. Although the 1988 exam diagnosed appellant's PTSD as "chronic, active, mild to moderate" and the 1985 exam simply diagnosed him as having PTSD, his symptoms were nearly identical in each examination, with the exception that appellant's hallucinations are not mentioned in the 1988 exam. Even if this difference between the two examinations should qualify as "material improvement," and we do not believe it does, such a finding cannot be supported when considered in conjunction with all the medical evidence of record as required by _CFR_3.343 38 C.F.R. § 3.343(a) , especially since outpatient reports from the Bay Pines Facility indicate that appellant's condition remained essentially the same since he first began treatment there in 1984. Furthermore, neither the 1985 exam nor the 1988 exam shows improvement in appellant's condition "while working or actively seeking work" as required by _CFR_3.343 38 C.F.R. § 3.343(a) . Section 3.343(a) provides that VA, when evaluating medical examinations showing material improvement, must give consideration to whether the veteran attained improvement under the "ordinary conditions of life, i.e., while working or actively seeking work," or whether the symptoms improved because of prolonged rest or a "regimen which precludes work." If the symptoms improved because of rest, and not under the ordinary conditions of life, as is the case here, a veteran's total disability cannot be reduced until "reexamination after a period of employment (3 to 6 months)." _CFR_3.343 38 C.F.R. § 3.343(a) . No evidence suggests that appellant was working or seeking work. In fact, both the examinations conducted by the VA and the outpatient reports indicate that appellant was unemployable. Not only was the VA careless in applying its regulations, but it failed to read its medical examinations carefully. For example, in the October 14, 1988, VA examination, the examiner reported: {2 Vet. App. 173} [Appellant] is cooperative, coherent, relevant, well oriented, competent, tense and anxious. His anxiety relates to random thoughts, his two sons and their behavior in school and at home. The youngest son got involved with alcohol and crack cocaine and was in the Horizon Hospital for two to three months and then transferred to a hospital in Bradenton and was there about four months. He is off alcohol and drugs now, for about the past nine months. He is back in school and seems to be doing okay. R. at 42. The Board, in its May 23, 1990, decision, cited the fact that appellant had been off drugs for nine months in support of its conclusion that appellant's condition had improved. Counsel for the Secretary was equally inattentive to the record: "The veteran was off drugs and alcohol for the last nine months; he was attending school and seemed to be doing well." (Br. of Appellee at 7). The BVA determined, without evidentiary support, that appellant's PTSD materially improved. This finding is clearly erroneous. In defining clearly erroneous, the Court has stated: The Supreme Court has defined the "clearly erroneous" standard as follows: "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)). Here, although there is some evidence to support a finding of slight improvement in appellant's condition if the October 14, 1988, examination alone is considered, we believe, after considering all the medical evidence of record, that a mistake has been made; the finding simply is not plausible in light of all the evidence. VA's erroneous finding is not surprising given that no mention was made of _CFR_3.343 38 C.F.R. § 3.343(a) until the May 23, 1989, Board decision which took notice of the regulation and found material improvement. Neither the numerous rating decisions nor the various statements of the case, noted earlier, mentioned the regulation which governs the reduction of total disability ratings. We further note the Board's failure to apply _CFR_4.16 38 C.F.R. § 4.16© , which controls total disability ratings for compensation based on unemployability of the individual veteran: [Where] the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a veteran from securing or following a substantially gainful occupation . . . the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. _CFR_4.16 38 C.F.R. § 4.16 (emphasis added). Since the Board found that appellant's condition warranted a 70% rating and all VA examinations indicated he was unemployable, the Board erred when it failed to consider the appellant's claim under _CFR_4.16 38 C.F.R. § 4.16© . We have invariably held that the BVA is not free to ignore its own regulations, even if the appellant fails to raise the issue on appeal. See, e.g., Akles v. Derwinski, 1 Vet.App. 118 (1991); Fugere v. Derwinski, 1 Vet.App. 103 (1990); Bentley v. Derwinski, 1 Vet.App. 28 (1990). For the reasons stated above, we REVERSE the decision of the BVA and REMAND it with directions to restore the appellant's 100% rating retroactive to the effective date of its reduction. 2 Vet. App. 144::CARLSON v. DERWINSKI::February 7, 1992, Decided My argument is not so much about what you state as 'judgement calls,' but ...about the fact that 'legal mistakes' were made during the 'various adjudications' of my claim! Remember that... 'the processing of my claim was 're-started,' from scratch, (VARO-Newark; VARO-Atlanta; VARO-Philadelphia), 'each time' my file was relocated due to my various physical residential moves between 1995 and 2002. During that time, every regional office refused to accept the processing work of the previous regional office! The other fuzzy aspect of my CUE claim, is... the unusually long overdue time-period that I took, to file my CUE appeal; which is related to other aspects of VA court decisions, such as: http://www.supremecourt.gov/opinions/10pdf/09-1036.pdf Just like this HadIt.Com thread, my 'CUE claim/appeal' has various arguable points, which must be considered, by the DRO, (VARO-Honolulu), before his/her final decision can be rendered. I have provided all of my researched informational documentation, along with my CUE claim/appeal; so ...I anticipate this process will not be a short one. We shall see; but ...I refuse to '...give-up!' Regards, Sonny

It's now August, 2013; and ...I started this CUE claim, (...which is currently at the 'DRO Appeal' stage), at VARO-Honolulu, in May, 2010. Waiting ...waiting, waiting! --

John 999; Thanks, again, for all of your input and advice. It has availed me to a needed alternate perspective; as ...I appreciate the various points-of-view that everyone has given me. All are valuable! To reply to your entry... 'I have been in-touch with a veterans attorney,' and ...instructed to wait, (at this juncture), until I get the VARO-Honolulu DRO's decision, and ...SOC, (Statement of the Case). After all, I'm already three, (3), years into this 'CUE claim/appeal,' which I originally filed in May of 2010. At this time, I feel that the DRO option will be the very first chance I've had, to-date, for a VA official to '...really read and consider,' all the VA medical treatment, (records), evidence, that's always been in my VA file! I have done all of the work, (after getting a copy of my VA file), of selecting the pertinent inpatient & outpatient, medical VAMC treatment records ...for the DRO's review. Especially the ones, (1995 - 2002), that were missed by the original VA rating official, when I received my very first award ...in 2002! As indicated, in my previous entries, I'll keep HadIt.Com informed of my progress ...under this topic. As always ...I welcome all input. Regards, Sonny

HadIt.Com; I just have to say that I received an email from my 'D. A. V.' office, at the VARO-Honolulu, today. They were informing me of their correspondence to the VA Intake office, concerning my request for the DRO to contact me, by phone, when he/she starts working my file. I hope I made it clear that I wasn't requesting a formal hearing; just an informal phone call. As noted, earlier, this 'CUE Appeal' for a retro-active, (1995-2002), increase of my initial award rating percentage, (from 30% to 60%), was started ...as a 'CUE claim,' in May of 2010. I intend to take this ...as far as necessary! I will keep HadIt.Com informed of all developments; as ...my experience may help some other veteran in the future. Regards, (Sonny) E. T. English - 'Vietnam Veteran'

*Update I am still waiting for a reply from my VARO-Honolulu, about my 2010 CUE claim/appeal. I also contacted the 'Office of Case Management,' in Washington, DC ...in an effort to shake-things-up. Oh well, I never even got a return call from the voice-mail which I left! I just need to make sure the assigned 'DRO' really reads my VA C-file ...completely! I made an entry, to bring everyone up-to-speed, at the following link: Posts I've Made In Topic: Cue Initial Rating Decision 01 May 2013 - 03:31 PM Ok; here's a fast-forward on my '...CUE for an increased initial rating percentage, from 30% to, at least, 60% -- Then, I noticed that all entries, concerning my 'CUE Appeal,' suddenly disappeared from the eBenefits website! After many inquiries to my VARO-Honolulu ...I received a letter from them, stating the following: "We received your Notice of Disagreement May 16,20ll that cannot be accepted because the rating decision of May 3,2011 was premature. We had no authority to adjudicate a freestanding claim for entitlement to an earlier effective date. You properly framed you claim as a claim for an earlier effective date based on clear and unmistakable error (CUE) and that claim needs to be considered. When a decision is made on the CUE claim and you disagree with that determination, you can then file a Notice of Disagreement at that time." First of all, I had been misunderstood, as to what my CUE was for. I was seeking an 'increase, from 30% to at least 60%, of my initial rating percentage ...which covered the period from 1995-to-2002!' (not an 'EED of my TDIU') Then, an entry was placed on the eBenefits website ...showing my new statement of my CUE claim/appeal, which I promptly forwarded to them, as my updated NOD. (???) The VARO-Honolulu entered the NOD as November 8, 2012; (denial decision was 10/19/2012) -- so, they just ignored the original NOD, and substituted my most-recent statement ...that corrected, and clarified, what I was filing my CUE for, as the new NOD! I then received a letter about my option for a 'DRO appeal.' (which I selected) -- Finally, as of 1/3/2013, the website shows my appeal pending. (at local VARO) Now, can anyone figure what all that maneuvering really means?! I also located, in my VA file, (which finally arrived in September, 2011), a '1971 service medical record,' from my '93rd Evac Hospital, in Long Binh, South Vietnam' ...that diagnosed my acute anxiety, (the term, 'PTSD' hadn't been coined at that time), and recommended my separation from the military. The VAMC-Lyons also found my PTSD program treatment records; as ...they had been responding to the VARO-Honolulu with negative results, for years, as if I'd made-up my in-patient stay at that VAMC. How could they use that as an excuse, when the program is mentioned in my rating for PTSD?! So... as of 1/3/2013 I am pending my DRO decision; and ...I think they have understood what my CUE is for! In Topic: Cue Initial Rating Decision 18 September 2012 - 12:57 PM *UPDATE: I haven't posted on the progress of this 'CUE appeal' because the attorney whom I contacted, suggested I await the response of the VARO-Honolulu ...from my 'NOD,' which I submitted in May, 2011.('primarily due to the current workload, and scheduling, of their law office') I also had, at that time, (August, 2011), to wait for the balance of my 'VA claims file' to be shipped to me; as ...the attorney suggested that I should, first, go over the medical reports in my claims file. I had also included a request for a 'DRO review,' in my 'NOD letter.' I found quite a few medical reports that support my position; however, I had to write to an investigative office at the VAMC-Lyons in order to get my PTSD medical reports; as ...they'd stated that there were no records indicating my ever being in their PTSD-program! They finally found my records, in November, 2011 ...after I'd written to the 'VA Office of General Counsel, in Washington, DC.' They compelled the 'VAMC-Lyons' to do a 'second' search! All prior responses for these records, to the VARO-Honolulu, had been negative! (that was my very first indication of the non-receipt of my medical reports, from VAMC-Lyons) Therefore, my medical reports, from the VAMC-Lyons PTSD program, in 1995, had never been sent to any of the inquiring VARO requesting offices! This is 'new' evidence! So, I am waiting for a decision from the 'DRO-Honolulu' ...concerning my 'NOD' for a 'CUE/initial rating increase.' I'm still open to any input; and ...I'll keep 'HadIt.com' posted of any new developments. Thank you. Sonny In Topic: Hawaii( Hi): Honolulu 16 September 2012 - 12:25 PM I've been waiting for a 'DRO review' since my claim's 'denial, and NOD submission,' in May, 2011; my claim was originally filed in May, 2010. What can I expect, in terms of time, for DRO contact? In Topic: Cue Initial Rating Decision 22 August 2011 - 09:35 AM Broncovet; Thanks for you input. As I stated, my 1995 claim for benefits wasn't awarded until 2002; and ...that was after I'd filed a Writ of Mandamus. All of my rating decisions, (30% from 1995-to-May of 2002; then, 70%/TDIU), were decided at the same time, (May, 2002); and ...I received the envelope in July of 2002. There was only one adjudication session ...after my filing of the 'Writ of Mandamus;' and ...that was at the local VARO-level. My claim had been languishing for seven years. It had been processed at three different VAROs. (Newark, NJ; Atlanta, GA; and Philadelphia, PA) Remember that... the VA couldn't find my stressor confirmation ...for 7-years; and ...I found it in less than 2-hours after arriving at the 'NARA Archives II,' in Matyland! I had to do my own PTSD stressor-event research! After I sent the information, (and location), to the VARO, they still dragged their feet for another six-months ...or so, until I filed the Writ of Mandamus. Then, I had all of my rating-awards within 30-days! Understand that... 'I went from homeless, (after my discharge from the VAMC-Lyons), on-the-streets, unemployed, and suffering from PTSD-Chronic ...since well before I actually knew, (via PTSD program in 1995), what condition I had; to... receiving a retro-active rating award, (30% for over 7-years; and 70%/TDIU from May 30, 2002), in July of 2002! I was in the middle of a major life-changing event ...for me! I was spent ...from dealing with the VA; and ...didn't want anything else to do with them! I was in constant fear of the award being some... 'huge-joke-of-a-mistake!' The PTSD had become much worse ...since 1995, when I had been in the VAMC-Lyons PTSD program. I had been getting help, all along ...while I was homeless and unemployed, at the 'Vet Center-Philadelphia; and ...the VAMC-Philadelphia.' That's why I'm still waiting for my claims file to be delivered. I received the first 100-pages for free; but ...had to send them, (VARO-Honolulu), a check, on August 2, 2011 ...for the rest of the 1,500+ pages! I submitted my request for my claims file ...in September of 2010! There has got to be so much corroborating information, to verify my reported events of that time-frame, in my claims-file. I have to file a C.U.E. because of the missed time-limit to appeal the rating decision of 2002. (which covered September, 1995-to-May, 2002) It's the 'only' rating decision that I've ever received! Sonny 'broncovet', on 21 Aug 2011 - 8:32 PM, said: 'broncovet', on 21 Aug 2011 - 8:32 PM, said: In Topic: Cue Initial Rating Decision 21 August 2011 - 01:28 PM 'carlie', on 20 Aug 2011 - 01:47 AM, said: 'carlie', on 20 Aug 2011 - 01:47 AM, said: Any, and all, input is welcome ...as always. Regards, Sonny

HadIt.Com; So, I'm still waiting to hear something from my VA Regional Office, (Appeals Section), in Honolulu; and ...getting those IRIS form letter email replies ...about the status of any 'DRO' action on my 'CUE Appeal.' I started this 'CUE claim' in May of 2010; filed my 'NOD' in November of 2012; and ...haven't heard anything encouraging to-date! I have, however, had time to read quite a few similar, 'BVA' and 'CAVC' cases ...which were also retro-actively granted. One was even a 'WWII' case; but ...most were Vietnam-era retro-active 'CUE' awards! The main problem, today, is with having one's appeal, (claims file), even processed ...to be assigned to a 'DRO,' who can do an in-depth reading of the claims file. This is a result of the current claims backlog issue. There is also a Congressional, (House Committee on Veterans Affairs), hearing being held, specifically, on the 'appeals issue.' -- Check-out the following link: http://veterans.house.gov/hearing/why-are-veterans-waiting-years-on-appeal-a-review-of-the-post-decision-process-for-appealed It is titled... "Why Are Veterans Waiting Years on Appeal?: A Review of the Post-Decision Process for Appealed Veterans’ Disability Benefits Claims" As always, all input is welcome. Sonny / 'Vietnam Veteran'

Attn.: HadIt.com Please be advised that I have already resigned myself to fight about this particular appeal issue ...until the very end! I'll either be heading to the BVA; CAVC; U.S. District Court; or '...die trying!' It has always been quite apparent, to me, that nobody, at the VARO-Honolulu, has ever read my 'complete claim/appeal file,' and ...all associated VAMC documents; VAMC medical treatment reports; VA inpatient and outpatient documents; and VA submitted PTSD inpatient program statements and reports '...completely!' The fact that I was diagnosed, by the VAMC-Lyons doctor, in 1995, with 'PTSD-Chronic' ...means I could only continue to get increasingly worse, from that point ...forward! The initial rating decision, (which wasn't awarded until 2002), however, retro-actively, remained the same for seven years after the 1995 claim date; even as ...I went through periods of homelessness, inpatient hospital stays, substance abuse, isolation from all family, acute unemployment, and varying levels of deep depression. My VAMC documents reflect the chronic nature of my condition ...over the years; but ...was ignored by the rating decisions covering 1995-to-2002. The fact that the Social Security Administration, (SSDI), awarded me disability ...also made no difference! I'm hoping that this opportunity to get-it-right, by the VARO-Honolulu DRO, isn't just another waste of time and energy. The highest hurdle to get over, now, is the '...time factor!' I just reached my 62nd birthday; which really means... I'm already into my 63rd year! If there is an attorney who finds my case interesting, please feel free to contact me at your earliest convenience. This 'May, 2010 CUE claim' has now, been a pending appeal ...since January, 2013. I have opted for a DRO review, at my VARO-Honolulu.

That's very interesting! Did you win your appeal ...yet?!