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    • I'm kind of confused and concerned about this one...

      I submitted my VA Disability claim for multiple items way back in 2011.  I got a very bad CP exam doc who denied everything despite nearly 20 years of treatment by civilian docs for some of the issues.  In 2012 I appealed with a notice of disagreement. In the meantime a doctor at the VA was willing to help with the paperwork for the TBI and filled it out which sped up that portion - I ended up getting  10% for tinnitus, 40% for the TBI residuals (memory and concentration) and 30% for migraines/headaches. 

      What is still on the original appeal is my feet/ankles & knees from an injury as well as left hand from putting a screwdriver through it.  It's been sitting in the 1st stage appeal limbo basket for nearly 5 years. Fast forward to 2016 - suddenly I find out that my original disability claim has been sent to Washington DC to the Board of Veteran Appeals.  Wow - what a shocker as I was expecting at least another exam.

      They said it will go before a judge.  What concerns me is that it's my original claim, including the TBI issues.  Will everything be reviewed and is it possible to lose what I have?  I thought it should have been only for the items still in appeal. I'm using handicapped plates because of my legs and  it is hard to concentrate and focus on things because of my head injury so this is overwhelming.  Not to mention that I'm also recovering from cancer surgery.  This is getting too much to handle.

      Is this whole " straight to the board of Veteran Appeals" right from the initial C/P disagreement a normal thing?   Thanks for any insight.  
    • Oh, okay. Either way, the VSO should be able to view the letter on Monday. Thanks.
    • Thanks I think from now I'm just going to try and forget it cause it's more stress then what I need right now.  And my VSO that started this left and the new one is clueless 
    • Did I write something that sounded harsh? If so, I didn't mean for anything to come across that way. I was just verifying the info seeing if you could figure out what it might be.
    • I have no idea what the letter is regarding and what it says.  Until then, I can't give you an answer.  I was simply making sure the other poster that stated what he stated understood that if the VA erred on a disability rating and the Veteran was getting over paid for it, the Veteran is not obligated to pay it back.





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NJ_Devil_Dog

Dd-214 Omission As Basis For Cue?

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Hello all,

I have a question regarding my claim and military awards.

I am currently appealing a denial of a 1995 claim for PTSD. I reopened the claim in 2003, and I sent the VA a copy of my DD-215. The reason being that I was awarded the Combat Action Ribbon for my service during the Gulf war. The award date was actually after I seperated in January of 1992, therefore the award didn't appear on my 214... (it actually wasn't an omission, it just hadn't been awarded yet) I received the 215 in after I returned from Afghanistan in 2003.

So here's my question.

Because the award is considered evidence of a combat stressor, would the 'constructive notice' ruling apply to the failure of the VA to consider this award as evidence? Therefore a CUE commited by the VA? There is a direct connection between my combat experiences and PTSD.

The other CUE I am persuing is because I believe, in the 1995 decision, the VA did not consider my outpatient records that include my diagnosis for PTSD.

I appreciate the feedback.

Gerald

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If the VA did not have or was unaware of the DD 215 and/or the Combat Action Ribbon Award when they made their decision in 1995, then this does not constitutre CUE. Evidence has to be in your VA records at the time of their decision for something like this to be considered a CUE.

Same thing with your outpateint records. Were these outpatient records from a VAMC or a private doctor? Even if there was a diagnosis of PTSD, but there was no record of a stressor, the VA had no choice but to deny the claim.

It's also a good bet that your two issues are "inextricably intertwined." See Harris v. Derwinski, 1 Vet. App. 180(1991).

Back in 1995 a claim had to be 'well-grounded' before the VA would assist in retrieving records. For example, if there wasn't a record of a streesor ect..., then the VA probably wouldn't set up a C&P exam to see if the veteran had PTSD.

Hope this helps!

Vike 17

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But Vike- under Bell V Derwinski- it had to be constructively in VA's posession- didn't it?

I mean a DD 215 is a correction of a past error-

by the Gov -so therefore -I agree with the Devil Dog-

and believe he must make this point with the VA- if they are looking for combat award as proof of stressor-

I think this is a bonafide CUE.

On the DD 215 issue-

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Thanks Berta and Vike,

I tend to agree with Berta on the constructive notice rulin of Bell. I believe it may be applicable.

I did have a C&P exam in '95, however the VA claimed that I was a no-show for the appointment, that's why I'm still waiting for my c-file (over a year now) to ensure that I'm not mistaken.... it's been so long ago that I cannot remember. However, if I did miss the exam I most surely re-scheduled within a years time!

I think that the issue of 'Not Well Grounded' may have something to do with this as well... from what I understand, it was somewhere around that time that the VA had to drop the well grounded claim and replace it with the 'Duty to Assist' policy.

The outpatient records were from the VAMC, so I believe they are covered by constructive notice...

I'll have to check out the Harris v Derwinski issue...

I just remember back in '95 when I got the denial letter, that I felt like they just did a shoddy job with my claim... a few months afterwards when I returned to the Lyons VAMC for treatment for PTSD. I was talking to the nurse who mentioned that from here observation, that my symptoms would be compensable. When She asked me if I had applied for disability, I said, "I did, but they denied them."

This was her response verbatum, "Oh, they always deny PTSD claims the first time around."

Needless to say I became so disenchanted with the whole system that I stopped persuing it until I came back from Afghanistan in '03. (I'm a retread from the Marine Corps with a 9 year break in service, then Re-upped with the National Guard in '01)

Anyway, thanks for the input, and as always I appreciate all the feedback.

Gerald

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Gerald- the VCAA replaced the not well grounded stuff-in 2000.

As long as you did get that C & P-I feel this is a CUE.

(Lyons----My Volunteer VA ID card is from Lyons Hosp.I think they took my fingerprints and all that too)

How can a vet with a CAR have a PTSD claim that is not well grounded?

ridiculous -

I posted some CUE claims susccess here- BVA and the CAVC. they should be found under the search feature

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Is it true that the majority of soldier in Iraq get the CAR. In Vietnam there was no such thing just CIB and some other very specific combat awards like Air Medals with V and brone star with V. Many soldiers were in combat but never got any combat awards. I am trying to get CIB since I was assinged that MOS while in Vietnam. It means nothing except my own pride. The assignment to 11b is right in my personnel records along with an evaluation.

John

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