Jay Johnson

send them an email with the title "open a hotmail/yahoo email account and get back to me". They are free, easy to sign up for and work fairly well.

Sounds like that doc used those stupid multi-question tests to determine what you have and how severe it is. Those tests have NO basis in medical fact and are often misused by the VA...they are meant to be general guidelines for Psychs on initial appointments to have a better idea of what they are getting into (a kinda bullet point version of your current problems); instead, the VA uses them as concrete documentation of a given disorder:-( Get your C&P exam results and tell us what the axis were and what the GAF was....also, as i always say, pay for a civilian doctor and get him/her to write you an eval as well:-)

That's just it, they don't have the right to make you wait for a doctor to sign off on it. I know it is a common practice, but it seems to fly in the face of the privacy act of 1974. When you request a copy of an exam they MUST give it to you without delay as per the privacy act. I'm not trying to start a war or anything, I just think the VA is pushing this law further and further and someone should call them on it before we no longer have any rights to speak of:-(

I believe this new VARO action on releasing C&P exams is unlawful AND you can take them to civil court over it!!!!! The privacy act assures veterans that they can have access to their records whenever they request it...here is a relevant portion of that act (pay close attention to the highlighted portions): P.S. - The only exemptions listed are for legal/security reasons...the VA does not fall under any of the exemptions listed. >>>>>(d) Access to records Each agency that maintains a system of records shall-- (1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him, except that the agency may require the individual to furnish a written statement authorizing discussion of that individual's record in the accompanying person's presence; (2) permit the individual to request amendment of a record pertaining to him and-- (A) not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of such request, acknowledge in writing such receipt; and (B) promptly, either-- (i) make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or (ii) inform the individual of its refusal to amend the record in accordance with his request, the reason for the refusal, the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official; (3) permit the individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, and not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual requests such review, complete such review and make a final determination unless, for good cause shown, the head of the agency extends such 30-day period; and if, after his review, the reviewing official also refuses to amend the record in accordance with the request, permit the individual to file with the agency a concise statement setting forth the reasons for his disagreement with the refusal of the agency, and notify the individual of the provisions for judicial review of the reviewing official's determination under subsection (g)(1)(A) of this section; (4) in any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (3) of this subsection, clearly note any portion of the record which is disputed and provide copies of the statement and, if the agency deems it appropriate, copies of a concise statement of the reasons of the agency for not making the amendments requested, to persons or other agencies to whom the disputed record has been disclosed; and (5) nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding. (e) Agency requirements Each agency that maintains a system of records shall-- (1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by Executive order of the President; (2) collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs; (3) inform each individual whom it asks to supply information, on the form which it uses to collect the information or on a separate form that can be retained by the individual-- (A) the authority (whether granted by statute, or by Executive order of the President) which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary; (B) the principal purpose or purposes for which the information is intended to be used; © the routine uses which may be made of the information, as published pursuant to paragraph (4)(D) of this subsection; and (D) the effects on him, if any, of not providing all or any part of the requested information; (4) subject to the provisions of paragraph (11) of this subsection, publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records, which notice shall include-- (A) the name and location of the system; (B) the categories of individuals on whom records are maintained in the system; © the categories of records maintained in the system; (D) each routine use of the records contained in the system, including the categories of users and the purpose of such use; (E) the policies and practices of the agency regarding storage, retrievability, access controls, retention, and disposal of the records; (F) the title and business address of the agency official who is responsible for the system of records; (G) the agency procedures whereby an individual can be notified at his request if the system of records contains a record pertaining to him; (H) the agency procedures whereby an individual can be notified at his request how he can gain access to any record pertaining to him contained in the system of records, and how he can contest its content; and (I) the categories of sources of records in the system; (5) maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination; (6) prior to disseminating any record about an individual to any person other than an agency, unless the dissemination is made pursuant to subsection (b)(2) of this section, make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes; (7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity; (8) make reasonable efforts to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record; (9) establish rules of conduct for persons involved in the design, development, operation, or maintenance of any system of records, or in maintaining any record, and instruct each such person with respect to such rules and the requirements of this section, including any other rules and procedures adopted pursuant to this section and the penalties for noncompliance; (10) establish appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained; (11) at least 30 days prior to publication of information under paragraph (4)(D) of this subsection, publish in the Federal Register notice of any new use or intended use of the information in the system, and provide an opportunity for interested persons to submit written data, views, or arguments to the agency; and (12) if such agency is a recipient agency or a source agency in a matching program with a non-Federal agency, with respect to any establishment or revision of a matching program, at least 30 days prior to conducting such program, publish in the Federal Register notice of such establishment or revision. (f) Agency rules In order to carry out the provisions of this section, each agency that maintains a system of records shall promulgate rules, in accordance with the requirements (including general notice) of section 553 of this title, which shall-- (1) establish procedures whereby an individual can be notified in response to his request if any system of records named by the individual contains a record pertaining to him; (2) define reasonable times, places, and requirements for identifying an individual who requests his record or information pertaining to him before the agency shall make the record or information available to the individual; (3) establish procedures for the disclosure to an individual upon his request of his record or information pertaining to him, including special procedure, if deemed necessary, for the disclosure to an individual of medical records, including psychological records, pertaining to him; (4) establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the agency of an initial adverse agency determination, and for whatever additional means may be necessary for each individual to be able to exercise fully his rights under this section; and (5) establish fees to be charged, if any, to any individual for making copies of his record, excluding the cost of any search for and review of the record. The Office of the Federal Register shall biennially compile and publish the rules promulgated under this subsection and agency notices published under subsection (e)(4) of this section in a form available to the public at low cost. (g)(1) Civil remedies Whenever any agency (A) makes a determination under subsection (d)(3) of this section not to amend an individual's record in accordance with his request, or fails to make such review in conformity with that subsection; (B) refuses to comply with an individual request under subsection (d)(1) of this section; © fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or (D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection. (2)(A) In any suit brought under the provisions of subsection (g)(1)(A) of this section, the court may order the agency to amend the individual's record in accordance with his request or in such other way as the court may direct. In such a case the court shall determine the matter de novo. (B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed. (3)(A) In any suit brought under the provisions of subsection (g)(1)(B) of this section, the court may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld from him. In such a case the court shall determine the matter de novo, and may examine the contents of any agency records in camera to determine whether the records or any portion thereof may be withheld under any of the exemptions set forth in subsection (k) of this section, and the burden is on the agency to sustain its action. (B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed. (4) In any suit brought under the provisions of subsection (g)(1)© or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of-- (A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and (B) the costs of the action together with reasonable attorney fees as determined by the court. (5) An action to enforce any liability created under this section may be brought in the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, without regard to the amount in controversy, within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation. Nothing in this section shall be construed to authorize any civil action by reason of any injury sustained as the result of a disclosure of a record prior to September 27, 1975. (h) Rights of legal guardians For the purposes of this section, the parent of any minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual. (i)(1) Criminal penalties Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by this section or by rules or regulations established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000. (2) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) of this section shall be guilty of a misdemeanor and fined not more than $5,000. (3) Any person who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses shall be guilty of a misdemeanor and fined not more than $5,000. (j) General exemptions The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), ©, and (e) of this title, to exempt any system of records within the agency from any part of this section except subsections (b), ©(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) if the system of records is-- (1) maintained by the Central Intelligence Agency; or (2) maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or © reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision. At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553© of this title, the reasons why the system of records is to be exempted from a provision of this section. (k) Specific exemptions The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), ©, and (e) of this title, to exempt any system of records within the agency from subsections ©(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of this section if the system of records is-- (1) subject to the provisions of section 552(b)(1) of this title; (2) investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) of this section: Provided, however, That if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence; (3) maintained in connection with providing protective services to the President of the United States or other individuals pursuant to section 3056 of Title 18; (4) required by statute to be maintained and used solely as statistical records; (5) investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence; (6) testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process; or (7) evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence. At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553© of this title, the reasons why the system of records is to be exempted from a provision of this section.<<<<<

My wife has PTSD so bad I cannot even go back to nursing myself (at least not at the moment..one can only hope she becomes self sufficient in the future). I have done a few things to keep myself busy (and for some extra money)....I got a business license and I sell christmas letters (and other holiday letters) from santa claus (sold about 800 this year and got good feedback, but I ended up with a very slight net-loss of money). I also, use the business license to sell odds-n-ends on Ebay....buying items that are dirt cheap and reselling is a slow process, but it keeps me, and the wife, busy and every little bit helps. I'm also looking to get into either real-estate or something else I can do from home, but it's hard finding courses that I can take exclusively from home (as I cannot leave the wife alone for any prolonged periods of time). On top of all this, I trade stocks and have done fairly well in that endeavor (made about 15K last year in my first full year....I used the money I got from selling our home <we moved cross country and are now renting>). If these things don't work for you, I would suggest that you get your wife to get into something (if possible)...as long as the work/business is in HER name you can do all the work you want from home. She could get her real-estate license and you could do ALL of the paperwork, appointments, etc. She could also get a job doing medical billing, data entry, etc from home and pass the work onto you. There are things out there if you look hard enough, but don't try to go back to a normal gainfully employed position...100% PTSD means YOU CANNOT WORK. Anyone who tells you otherwise is out of their mind.

Partially correct.....you need full military retirement due to time in service and NOT medical retirement (exact same benefits, but one does not count for concurrent receipt:-(. My wife is retired from the military, but only has 6 years service as hers was a medical discharge...she would need the full 20 years to get concurrent receipt. Or has something changed in the last few months?

You may have an outside chance if you could prove that ALL of the evidence of record shows you deserved X%, but even that is incredibly weak in my opinion. I believe it says in some court decisions that you cannot CUE the benefit of the doubt rule so ALL of the evidence must conclude that you deserve X%, without any room for interpretation. You can reopen the claim if you get new evidence that suggests that things have gotten worse...it may be in your best interest to seek out a civilian doctor that is willing to say that your condition has gotten progressively worse and will continue to do so. This should constitute new and material evidence. Also, you can use your own statements such as, you use to be able to do activity XXX, but no longer can due to increasing severity.....stuff like that may reopen your case. It sounds like you got royally screwed by the VA, but I'm guessing you have no hard proof of it (IE - a paper where they say YOU must prove your SC or other such wording)...they insinuate a lot of improper stuff, but are smart enough not to write it down and you can't CUE something based on what you say they said:-(

You weren't in the military for more then 18 mnths? If so, then you qualify for SS...your military survice is a job that you pay taxes on (SS) and most certainly counts towards the minimum number of months needed to qualify for SS. Hell, my wife's only job (aside from some retail she did in HS) was her military career...she only spent 6 yrs in the military and is only, currently, 28yrs old and 100% P&T with HB and SS. As for work, don't do it, period! Unless you can make well more then you could from the VA (not likely I'm guessing) then it is NOT worth the risk, especially in cases of PTSD. Unlike other disbabilities (like missing foot/leg/arms/etc), there is no concrete rating for PTSD and one of the major criteria for a 100% rating is "complete OCCUPATIONAL disability"...in fact, any GAF under 40 implies that you cannot work due to your psychological issues. By going to work you are, in effect, saying that you are better. I can't stress it enough, work while at that level of PTSD is a HORRIBLE idea. Trust me:-) Here are the 100% and 70% rating criteria for mental disorders...pay close attention to the "occupational" parts: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name....................... 100% Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships...........................70% There is NO WAY you could qualify for either of these and be gainfully employed in my opinion.....at the very least the 70% level would be a HUGE uphill battle if you're employed. P.S. - Not saying I agree with these rules...in fact, I think all folks with 100% PTSD (chronic) should be locked in for life regardless of employment. It would allow them to TRY to better themselves socially (IE - quality of life) and statistics show, even if they did attempt to work, that PTSD people ALWAYS relapse and will, eventually, lose any employment they were able to achieve. If I ran the VA I would start a system by which people are locked into 70%+ ratings and reduce their VA pay by any money they make in the civilian sector...this would save the VA money in the long run and give a LOT more stability to veterans with psychiatric disorder.

Bah, I wish I was here for this:-( First, you could have and SHOULD have filed for VA disability BEFORE your discharge. When my wife had her MEB she had the amvets representative file her paperwork before discharge (called the "fast track" program with amvets). She had her VA decision within two months of discharge (plus got the back pay from the date filed while STILL in the AF). Since I can't fix what I missed I'll try to help your "current" situation....few questions first though: 1) Is there any other cause for your depression? (IE - rape, war, harassment, etc). 2) What is your discharge date and can you get in contact with an amvets rep? (I believe that fast track thing was an amvets only thing). 3) Have you elected to take your severance or take the monthly retirement pay yet? With that said, DO NOT take a severance check (NO< NO< NO< NO). Take the retirement and file for disability with the VA. Don't worry about the temporary disability thing (TDRL)... NO ONE gets permanent retirement on the first MEB (wife was extremely odd in that she got permanent retirement on her second MEB <first eval>). Normally it takes a min. of 5 years on TDRL to get a permanent retirement from the military. Also, I do not agree with the "you are active duty thing" as per TDRL and the VA...the wife was receiving 100% from the VA while being on the TDRL for 2 years (and the VA new this because the MEB paperwork was submitted as evidence on her initial award). Basically, find a VSO willing to help you file (I don't care for VSO's in general, but, as was our case, they can be helpful on your initial filing). Get a copy of your medical records and copy your MEB decision many, many times (along with your DD214 when the time comes) and put them in a very safe place (IE - safety deposit box at a bank). You WILL get VA disability in your case...I'm almost 100% sure of this. If you want to get a fair amount of VA money you will need to start fishing for some civilian opinions and show them how BAD you are and not how good you can be (you will learn in the VA system that the VA fishes for info to give you less money, so don't let them find anything). In other words, don't dress up when you go to the doctor, don't smile as many would to be polite (if you're sad, then be sad), only speak of your problems and bad days and DO NOT talk about the good ones (if prompted say that the good days aren't much better) and get several opinions if possible (pay out of pocket if needed). Also, NEVER talk about your past (IE - family) in a negative way...as far as they're concerned your childhood couldn't have been better! Anyway, I'm really sorry I wasn't here to help when you needed it most:-( The wife does very poorly during the holidays and we were locked in our own battle with the VA at the time. She was AF (6 years in and E-5), when she was medically boarded and I am fairly knowledgeable on the topic...you'll find that the people charged with telling you what you can and cannot do (IE - your discharge briefings) are COMPLETELY clueless...even the VSO, if you get one, that gives the disabled briefing. Do not trust that they will put you on the right path, because the average military person is 100% clueless about how the VA works. My wife was in finance when she was discharged and they're the ones charged with doing the discharge briefings and she was clueless even after the briefing by her fellow co-worker (if that tells you anything).

It's not so much in how you word it as it is about what you're arguing in the first place. Your CUE, basically, has to say that the RO/BVA/COVA broke XXX regulation...then you need to cite said regulation and show how, exactly, they broke ti and how, if changed, it would affect your claim. Medical opinions, personal opinions, etc have no place in a CUE...it is simply a matter of what rule was broken and how it was broken. Here is the format I used on one of my recent CUEs...basically you need to show which reg was broken, how it was broken AND how it would result in a favorable decision if they agree with you: To whom it may concern, I am filing a CUE on the basis that there was misapplication and misrepresentation of the regulations in regards to reducing my SMC (A&A) to housebound, in the rating’s decision dated June 11, 2005. The basis for this CUE are as follows: 1) The reasons given for reduction of A&A (dated 06/11/2005…attached) were “You are not in need of aid and attendance of another person to protect yourself from hazards or dangers incident in daily environment. The allegation that your husband must watch over you to keep you from self-harm is not a hazard that is incidental to daily living environment. Clearly your choice to remain in bed and spend much of your day sleeping is not the result of service connected physical or mental impairment”. The above reasons are not “new and material evidence” and do not meet the requirements for a ratings reduction. The RO cannot summarily dismiss another region’s decision as per 3.104 and 3.105 (difference of opinion). The Prior rating’s decision (from Philadelphia RO dated April 26, 2004…attached) made it clear that A&A was warranted based on “being incapable of being alone at home, as you may be a danger to yourself and/or others.” This decision may only be reviewed at a higher adjudicative body (3.104, 3.105) or by CUE. 2) The rater, in this case, went against the precedent set forth by the BVA (BVA9401373, docket no. 91-46 743….see attached). In this decision the BVA made it quite clear that A&A is warranted in situations where a veteran is a severe threat to him or herself based on suicidal/homicidal ideation and allowed for care to be provided by the spouse. The rater must apply precedent to this case and does not have the authority to lower a rating based on his or her own interpretation of the regulation. The rater had this precedent at the time of the decision, as it was sent to the RO previously. 3) All of the evidence of record shows a continued (and increased) need for A&A based on the criteria set forth in the Philadelphia decision dated April 26, 2004. The letter dated April 7, 2005 from Dr. XXX clearly shows a continued need for A&A based on suicidal ideation (attached). The RO also has all of the documents from a recent hospital stay at SW Washington Medical Center (April 21, 2005 – May 2, 2005), in which several suicide attempts were recorded and an admitting GAF of 10(attached) was given (“Persistent danger of severely hurting self or others (e.g., recurrent violence) OR persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of death.”). Also, a current GAF of 15 was given by Dr. XXX (“Some danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) OR occasionally fails to maintain minimal personal hygiene (e.g., smears feces) OR gross impairment in communication (e.g., largely incoherent or mute).”). There is no evidence of any material improvement in her ability to care for herself and keep herself safe. It is quite clear that the regulations 3.104 and 3.105 were violated in this decision and that precedent was not followed. It is also clear that the rater used opinion rather then medical facts in coming to his or her decision. All of this evidence was presented to the RO and no reasonable mind could argue that this decision was erroneous and should be overturned. Also, this change will result in increased benefits for the veteran (from housebound to A&A) and, therefore, falls under the guidelines of “clear and unmistakable error”. Thank You, Names omitted.

Well, an RO can CUE itself whenever it wants, so why can't we? Under the M21 thing it states that a supervisor can only overturn a rater's decision if they find CUE or ask for help from the "central office". The same is said in 3.104 and 3.105....One RO can CUE another RO even if you're still in appeals. Basically, any time the RO finds that a rule of law has been broken they can claim CUE ergardless of the status of your claim, so why then should we be limited in when we can call CUE? Either way, the wording is weak and the law is far from concrete......I'm not saying Berta is wrong, but, at the same time, we shouldn't discourage vets from filing valid CUEs even if they are in the appeals process, because it may become a precedent setting case (of course that's *if* the RO accepts the CUE during appeals...seems some RO's interpret the law differently).

I wanted to add that I'm not trying to push this opinion on anyone...I've done a lot of research on this topic and a LOT of the legal advisors on this matter take the COVA's thoughts on CUE to mean that the claim MUST be finally adjudicated. My argument is that these opinions are reading too much into the COVA decisions and do not hold up to the regs they are citing. The COVA states that a claim must be "final", but does not say that ALL appeals must be exhausted or that the claim must be finally adjudicated. There seems to be a solid grey area here that people are jumping to conclusions over. If the COVA meant for CUE oto be "finally adjudicated' then why not cite 3.160 instead of 3.104? In my opinion, file your CUEs with your NODs and make the VA sort it out and argue any decision they make all the way up to the COVA to clarify the issue. At the very least, it will put more eyes onto your claim which never hurts:-)

3.104 and 3.105 clearly show that a "final and binding" decision is NOT a finally adjudicated claim (separate reg also linked in this thread)...you are mixing words between two separate regs. A final and binding decision is nothing more then any decision made by any VARO (it even says it in the decision they send you...IE - "after 60 days this decision will be final and binding", straight from my wife's most recent decision). I know of 2 different vets (one in this region and one in philadelphia region) who have put in CUEs during their appeals process and one of them won their claim based on the CUE (it was cited as "clear and unmistakable error" in his decision). Again, this isn't a concrete thing and I'm guessing certain ROs are doing things differently, but there is nothing in any reg or court decision that EVER said the claim must be "finally adjudicated". "final and binding" = Ro decision, nothing more "finally adjudicated" = an unappealed claim (after 1 year) or a claim that has exhausted ALL appeals. You are correct in that the only way to open a finally adjudicated claim is to CUE it, but that doesn't mean the claim HAS to be finally adjudicated to CUE it....absolutely nothing in the regs, or court cases, even suggests that. This is a case of certain people, the VA included, misusing their own regs (nothing new here)...they have twisted the term "final claim" into meaning finally adjudicated, but NO ONE, of an official nature, has EVER used the term finally adjudicated in any court decision in regards to CUE that I am aware of. I push this issue, because I KNOW the RO's (at laest two) are accepting CUEs during the appeals process...this gives veterans a two-pronged attack if their case merits a CUE in the early stages. It also, gives them two completely different sets of eye reviewing their claims from two different perspectives. IMO, this double their chances of winning at every level (CUEs and NODs can be appealed to the BVA separately. P.S. - 38 USCS + 38 CFR make no mention of finality in regards to CUE...all of the applicable CUE regs are listed in this thread. The CAVC NEVER once said a claim must be "finally adjudicated" and I haven't seen anything from the OGC or NVLS that suggests a CUE MUST be finally adjudicated. They calim the CUE must be final and binding (which isn't even stated in the reg for CUE), then insinuate that final and binding means that the claim must have exhausted ALL appeals, which clearly isn't true as per 3.104/3.105. We really need to push back on this issue because it could help a LOT of veterans if we get it clarified. BTW, there isn't a SINGLE court case in history that shoots down a CUE for being filed before appeals were exhausted......If it were established law that you can't file CUE during appeals there would, at least, be one case where someone tried.

Jim is right...CUE is proving they broke a law, not a misdiagnosis. Even if you could prove there was some law broken (which sounds unlikely in this case), you would have to be sure that the laws regarding said diagnosis were the same back then (which often times isn't the case). If the newer rating is more advantageous to you, then you should try to get new and material evidence to get a higher rating, but, as jim also said, you are getting into something that could actually make your rating MUCH worse, so be sure you weigh the pros/cons. P.S. - Again, a misdiagnosis is not CUE...you would have to prove that you met certain ratings criteria and the RO (not the doctor) gave you the wrong diagnosis and, hence, rating. A diagnosis is a judgement call in many cases and not subject to any concrete regs that I know of.

The way I understand the 20 year rule is that it cannot be over-turned even by CUE. The only way to reduce someone after 20yrs is to prove fraud.....even if you were 100% better and dancing in the streets.

That link merely shows that you cannot reopen a claim once the appeals process has ended and that the only way it can be opened is by CUE and/or new and material evidence. It doesn't say anywhere that CUEs are limited to cases that have been "finally adjudicated". A CUE is just a legal argument...you can raise CUE at any time as long as you follow the very strict guidelines for what is and isn't CUE. Essentially, a CUE is a form of appeal (a legal appeal)....I just don't see anything in the regs to suggest otherwise. It appears that you are mixing the term "final and binding" with a "finally adjudicated claim"......final and binding merely refers to any decision made by any VARO. Final and binding doesn't say anything about exhausting appeals or the one year expiration noted in a "finally adjudicated" claim (see 3.104 and 3.105 in this thread). Again, the DRO, the director and my other contact all said I could file a CUE at any time once the 60 day period expired AND that I could file both a CUE and a NOD on the same claim. I believe CUEs are being under-utilized at the moment, because they are greatly misunderstood. Most people don't know what constitutes a CUE and, by this thread, there seems to be debate on when one can even file a valid CUE.

Keep journals of when you have pain, how severe it is and how it affects your life at the time. Try to get into some form of long term rehab and/or regular exams for your back and keep ALL the evidence you acquire. Find out the criteria minimums for the various levels in regards to back injuries and try to formulate your journal, and medical evidence, to meet said criteria. You need to spoon feed them the information so that they have NO choice but to grant the level you are seeking.

Well, that's where I think we may have a difference in the interpretation of CUE. I don't "believe" you need to wait for that "one year period" to file CUE. I think you can file CUE as soon as the VARO makes a decision AND you can file CUE WHILE filing your regular appeals. The director here in seattle told me that they take two different tracks...in fact, you can appeal your DRO decision to the BVA (if needed) and appeal the CUE decision (by the VARO) to the BVA at the same time on the same subject. Basically, you seem to be saying that you need a "finally adjudicated claim" in order to file CUE, but I can't find anything in the regs that makes that assertion? I, on the other hand, am saying that you can file CUE along with a NOD at the same time on the same VARO decision...in my case, I filed a NOD based on the level of disability they gave her (IE - their medical interpretation) AND, at the same time, filed a CUE on the same subject, but based it purely on violating 3.327 (one CUE) and 3.104/3.105 (the second CUE based on jurisdiction issues pertaining to their A&A decision).

Forgot to address this question directly......the VA cannot order a C&P based on CUEing itself due to the regulations behind a CUE. Since a CUE is simply looking at the legal issues behind the previous decision, a C&P exam could have no impact one way or the other. If the VA feels the previous RO's rating was wrong based on the medical evidence then they need to file an appeal with the "central office" stating why they feel that the previous decision was wrong. The VA often claims the last decision could be wrong so they're justified in doing a fact finding mission, but, I believe, this is in violation of the standing regs...trouble is, they often get away with it:-( Here are the regs pertaining to this: § 3.104 Finality of decisions. top (a) A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in §3.105 and §3.2600 of this part. (B) Current determinations of line of duty, character of discharge, relationship, dependency, domestic relations questions, homicide, and findings of fact of death or presumptions of death made in accordance with existing instructions, and by application of the same criteria and based on the same facts, by either an Adjudication activity or an Insurance activity are binding one upon the other in the absence of clear and unmistakable error. [29 FR 1462, Jan. 29, 1964, as amended at 29 FR 7547, June 12, 1964; 56 FR 65846, Dec. 19, 1991; 66 FR 21874, May 2, 2001] § 3.105 Revision of decisions. top The provisions of this section apply except where an award was based on an act of commission or omission by the payee, or with his or her knowledge (§3.500(B)); there is a change in law or a Department of Veterans Affairs issue, or a change in interpretation of law or a Department of Veterans Affairs issue (§3.114); or the evidence establishes that service connection was clearly illegal. The provisions with respect to the date of discontinuance of benefits are applicable to running awards. Where the award has been suspended, and it is determined that no additional payments are in order, the award will be discontinued effective date of last payment. (a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500(B)(2) will apply. (B) Difference of opinion. Whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than a clear and unmistakable error, the proposed revision will be recommended to Central Office. However, a decision may be revised under §3.2600 without being recommended to Central Office.

My pleasure:-) That part I quoted from the congressional hearings is a VERY strong quote in my opinion...the VA often uses quotes from the secretary (and other higher ups) when making decisions, especially at the BVA and the COVA level. Everyone who is P&T and gets an order to report to a C&P exam should print the info from those hearrings and use it against them:-)

Yes, and attach the actual medical records to prove this. Also, write a statement saying how these treatments affect your daily life and the exact reasons why you needed the treatments (IE - symptoms that cause you to need the treatments and be specific). Written information can help a lot, especially when backed by medical documentation. One more point - keep things short and sweet and highlight the areas of the medical records that YOU want them to focus on (yes, they do skim and skim often)....in other words, pretend you're talking to an 8 year old. As for meeting rating's criteria - They, the VA, have great latitude in interpreting the degree of severity...basically, if you don't meet ALL of the requirements for a given criteria then they can give you the lower rating. Anything short of that and they can claim that "you're disability BEST fits the lower criteria rating", and you'll have an uphill battle. With that said, they are "supposed" to give you the higher rating if you meet "most" of the criteria (IE - if there's 5 criteria and you meet 3 you should get it), but severity is a very debatable thing and they would rather force you to fight upwards then award you what you deserve in the hopes that you'll give up or the BVA will uphold their decision (which they often do). This is also a good reason to frame your argument in terms of the criteria you are shooting for (or even a step higher so you can still get the rating you want, yet the VA feels they still low-balled you). You should frame your paper to them something like this: Here are the reasons why I feel I deserve compensation at a higher level - 1) (list a symptom that would meet a given criteria) 2) (list another symptom that meets a different criteria) 3) (rinse/repeat as needed to meet all criteria) Sum it up by stating that you deserve a higher rating because your disability causes A,B,C,D, etc (basically tie your symptoms directly to the rating's criteria)..... Then attach the relevant medical records and highlight (with a highlighter) all of the information that proves everything you just wrote. This forces them to counter each point rather then giving them room to make a broad, general decision without giving sufficient reason.

Hey Berta, nice to be back:-) What, exactly, do you mean by "unappealed"? In our case we were in the process of appealing the decision (had a NOD in for DRO review), while also having two CUEs in for breaking 3.327 and the reg. about not superseding another VARO's decision (Exact reg escapes me ATM). They (the seattle RO) seemed to handle both appeals separately....when the DRO contacted us he only had the NOD information and stated that the CUE was in a different department. I almost wish I would not have dropped the A&A issue just to see how the CUE played out:-( It would be a very good tool to use if veterans could file both NODs (on the medical points) and CUEs (on the legal points) at the same time (which seemed to be the case as per my contacts and my contacts were quite knowledgeable......one of which was the VARO director).

I don't believe that is correct. I have pointed this out using the regs in the past and I recently submitted (and had accepted) 2 CUE claims while simultaneously having a NOD in for a DRO. A CUE is simply an argument based on VA regulations and ONLY VA regulations...you can argue your case based on medical opinion and other factors WHILE arguing a separate legal matter that falls under CUE. CUEs also go to a different department in the VARO all together and is handled separately from your NOD (The DRO we spoke with said we would have to get in touch with our contact to have the CUE's dropped after he gave us what we wanted because he had no power over the CUEs). Again, the laws pertaining to CUE say that the decision must be "final", but "final" under VA regulation is simply any decision that has been made by the VARO that has gone into effect (IE - You can't CUE while you're still in the 60 day period after a decision). Regardless of all this, I understand that the laws surrounding CUE are very vague at best and I'm not saying I am 100% correct, but given the definition of a "final decision" by the VA and the fact that CUE merely calls for a "final decision", I don't see a need for a claim to have gone through the BVA (and all other appeals) before filing CUE. I'll try to dig up the terms later, but we've gone over this before. Dug up the old post wher we discussed this. Here are the regs pertaining to CUE and finality: § 3.160 Status of claims. (d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§20.1103 and 20.1104 of this chapter.) § 3.104 Finality of decisions. (a) A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in §3.105 and §3.2600 of this part. § 3.105 Revision of decisions. (a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500((2) will apply. § 5109A. Revision of decisions on grounds of clear and unmistakable error Release date: 2005-10-11 (a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised. ( For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision. © Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant. (d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made. (e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim. And here's a link to that old thread: CUE Debate

Thanks dorothy:-) It seems that they are trying to reduce most PTSD folks with A&A to HB to save some money. In my wife's case they gave NO new information in their decision and, merely said that they did not agree with her ever having been awarded it in the first place (which is against the regs and I CUED it). Basically, in the end, the HB is more advantageous to us because it allows me more freedom. Under her last award for A&A it was written that she needed me with her at all times for suicidal/homicidal ideation...there is a chance, in the future, that this level of self harm may subside, which means, technically, I would have to inform them of the improvement, or, if they found out, they could sue us for overpayment for the time she no longer required A&A (again, opening pandora's box). HB, on the other hand, is less strict and considered to be permanent (as a single disability and not several 60%+ disabilities). There is a chance that my wife could become less dependent on me (god I hope so), but there is little chance that she'll ever regain her ability to function in society independently....so, with HB I lose a couple hundred dollars per month, but I believe it gives us more stability. Also, I didn't want to put the wife through further appeals on the matter....$200 just isn't worth the hell of fighting the VA for the next few years:-( With that said, I certainly don't discourage you from getting what you deserve, but just make sure it's something you truly feel is worth the hell that the VA will put you through to get it. BTW, under the HB single disability rule you MUST be P&T to qualify and cannot have future exams scheduled, which, in my opinion, puts you on more solid ground then A&A which has no such prerequisites.

It really depends on the person interpreting the law in my opinion. 3.327 clearly states that you cannot order a future "reexamination" for someone who is deemed to be P&T, but it also says that this doesn't limit the VA's authority to order an exam if necessary. What this means is that the VA cannot order a periodic reexamination under any circumstances if they deem one to be P&T, but they can order an exam, in the future, if they meet one of a few criteria, namely new and material evidence or CUE (on themselves). The problem is that some raters are reading the "it will not limit the VA's authority" as meaning they can, in fact, order future exams. The very definition of P&T is that there is no likelihood of improvement and is meant to stop needless examinations for chronic conditions. The best you can do in this case is cite 3.327 and ask them to follow their own regs. Also, there was an article posted here from the vice-secretary, head of C&P, etc to congress awhile back...I used this article because it said, under title 35 benefits, that one is not eligible for CH. 35 unless they are deemed to be P&T, which means NO FUTURE EXAMS are scheduled......that statement from the top dogs is pretty hard for the RO to argue. Also, in my wife's case, the director told her, directly, that they should not have scheduled a future exam in her case due to P&T (as did the DRO). The sticky point is that they do have latitude to order an exam (not a periodic reexamination) if they meet the aforementioned criteria...the problem is that they can just lie about meeting said criteria and force you into a C&P in which they can then cite, for certain, new and material evidence...so, even if you prove that they should not have ordered the C&P in the first place, they already have new info on you so the point is moot. It's just another dirty trick to put PTSD folks through the ringer as many times as possible. The only real way to avoid this is to completely avoid the VA all together.....any time you see a VA doc, go to a VA hospital, file a different claim, etc you open pandora's box. I know this is a horrible way to do things as it isn't fair for vets to have to hide and not be able to use the benefits they deserve, but until they strengthen the laws behind P&T, it seems like the only viable protection:-( As far as fighting exams that have been wrongly ordered - I would ask for proof of new and material evidence.....without proof of this they have NO right to order an exam on a P&T vet. Also, in cases of TDIU P&T, they need not only show improvement in the disability, but they must also have material evidence that the vet is capable of work (P&T for TDIU means the vet is not likely to ever work again...if there is no proof that the vet is able to work then they have no justification to reopen a claim). With that said, they often reopen claims anyway in the hopes that you won't win your argument before they exam you, which, effectively, gives them a lot more latitude in your case. I'll try to dig up that old post here about the VA leaders to congress, but it's probably buried pretty deep. P.S. - I dug up that old post I was speaking of...here's the link to the entire post followed by the specific excerpt in question - P&T TDIU Hearings >>>>>>Additional Benefits A total disability rating based on IU can result in eligibility for additional benefits for a veteran’s dependents and survivors. Educational benefits for the veteran’s spouse and eligible children are available under the Survivors’ and Dependents’ Educational Assistance Program (title 38, United States Code, Chapter 35). The Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) provides reimbursement to eligible dependents for most medical expenses, provided that they are not also eligible for health care benefits provided by the Department of Defense. To be eligible for both of these benefits, the veteran’s IU determination must be considered permanent. Permanency for eligibility to Chapter 35 and CHAMPVA requires that there not be a future examination scheduled.