ljl

I was mistaken on that.and removed it. Turns out they awarded a 100% rating rather than TDIU (back then) if there was a single mental health issue at 60? or 70 percent or above and the veteran couldn't work gainfully. They rated me 50 percent using NONE of the records that were added to my file later that proved my case and led to service connection at 70 percent. They rated me at 50 for the entire retroactive period of 27 years. My records contain information that is undeniably in the 70 percent range so I've decided to start with a retrospective medical opinion going back to 1990 as additional evidence in a supplemental claim on the rating decision to also most likely include an occupational retrospective evaluation. This would be a supplemental claim on the ratings decision when I was awarded the earlier effective date for GAD - a different claim. It seems like It would be the fastest immediate route.

Point taken about the attorney. I'm thinking the BVA should be able to look at this and hopefully adjudicate it according to law. I just posted that after my EED for service connection at 70% for GAD decision, the BVA sent my case back to the RO where they considered the SAME inadequate examination done in 1990 and it's conclusions based on incomplete evidence in order to assign me the 50% rating between 1990 and 2017. The whole point is that I was awarded later on based on those additional service records!

After saying I was done clarifying, I want to point out something else that is relevant to this: I was service connected at 70% in 2017 once the missing records from 1990 were considered. 38 cfr 3.156(c) is supposed to put the veteran in the same position they would have been in had those records been considered the first time around. They backdated the service connection but changed the rating to 50% in the interim - the 27 years between the original claim and the new decision. In 1990, a 70% rating of a single mental condition SHALL qualify a veteran for TDIU. The statute has changed since then but they are supposed to go by the more favorable statute. As a matter of fact, I just double checked and they based their 50% rating on the SAME inadequate examination done in 1990 where the missing records were not considered in order to assign that rating. The 1990 examination is the ONLY evidence listed besides the decision to award me an earlier effective date.

I'm on looking for a attorney. It sure appears they're trying to shut this thing down any way they can think of. Someone in the know told me this has become more frequent lately and to just take it up to the BVA to straighten out this mess. It's sounding to me like this trend should be looked at by the OIG.

For more clarification I'll add these last two items. I don't want to belabor the point and I'm looking for representation because of this. My main hope is to tap into other's experience here and get some reflection back on what happened with my claim. Here are two screenshots that really made me sit back when I read them:

I'm wondering if it's possible to request an audit by claim. Probably not but that RO I'd likke to see audited. This wouldn't be a first-time experience for me through this RO.

I don't know if it makes a difference but I've never even heard of any of this or the other statutes they mentioned. They must have seen something that I wrote that they thought applied through these. Meanwhile, 38 cfr 3.156(c), which I based my assertions on and is central to this case, wasn't acknowledged. Neither was the evidence I sent in. The only exam they included was the one exam that was falsified by a quack that I've explained over and over again, is also inadequate. They use it in every decision because the examiner was stark raving crazy and was known to be so by other veterans. After the bizarre encounter I had with her, the psychologist I was seeing stopped sending their patients to her for exams and they also filed a complaint with the state board of health like I did. I was a patient at the psychologist's office for a year. They did a series of tests on me in addition to the counseling I was receiving and submitted thorough DBQ with all of the diagnosis and nexus and the VA ignores it also. Total cherry picking and manipulation. Incidentally, the remainder of the past due benefits comes up to around 600k.

This what I'm going by. It's very similar to mine and why I'm leaning on 3.156(c): The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009) the Court held that where there is evidence of unemployability at the time a Veteran challenges the initial rating or effective date assigned a service-connected disorder, the determination of whether he or she is entitled to TDIU, including the effective date therefor, is part and parcel of the determination of the initial rating. The facts in Rice are similar to those involved in the Veteran's claim. In both cases, the TDIU claim arose in the context of an appeal concerning the initial disability rating . The Board acknowledges that the Veteran's successful PTSD claim involved an application to reopen a previously denied claim, whereas Rice concerned the award of service connection based on an original claim. Nevertheless, given that the Board here is awarding an earlier effective date for PTSD through the device of 38 CFR 3.156(c), which effectively negates the preclusive effects of the prior rating actions, the Board finds that Rice is applicable to this case. For this reason, the Board finds that the Veteran's August 1991 claim seeking service connection for PTSD also included a claim seeking entitlement to a TDIU. Thus, the date of the TDIU claim is August 8, 1991. The remaining question is when the Veteran's PTSD rendered him unemployable.

I'm sorry for any confusion my post has elicited. Here is a brief summary to put things into perspective: I filed a claim for GAD in 1990, within 1 year of separation which was denied and I didn't appeal. I filed another claim in 2017 for something else which led to my service connection for GAD but with an ED of the date of the new filing of the claim. Service records were added during the pendency of that claim which proved service connection for GAD. 38 cfr 3.156(c) applies. I disagreed with the VA about the ED for service connection for GAD vocally beginning BEFORE my claim had been decided through emails to the RO and continuing after the decision with an appeal to the BVA. My award for service connection for GAD was ultimately assigned as April of 1990 because of the addition of the service records that were available to not considered at the time of the original decision (3.156(c)). I applied for TDIU and was denied during the time I was appealing for an EED for service connection for GAD. When I finally got TDIU, the VA gave me the same ED as the service connection in 2017. When I won the EED for service connection for GAD going back 27 years the VA didn't consider the matter of TDIU at the time they reconsidered my 1990 claim. 3.156(c) leaves the original claim pending and suspends any previous ratings decisions. TDIU was part and parcel of that determination (Rice vs Shinseki) and was also reasonably raised as an issue but wasn't addressed, leaving me to go another route. The EED for TDIU was denied through a Higher Level Review a few months back based on the effective date of Dec 2017 for service connection for GAD. The VA didn't realize that date had been recently moved to 1990. I sent them proof of the EED for GAD along with dozens of pages of additional evidence supporting my claim of UI going back to 1990 in the form of a Supplemental Claim. I carefully labeled all of the additional evidence and everything was faxed together in one transmission. The VA cherry picked my Supplemental Claim clean and arbitrarily labeled it a CUE claim. I don't even know how to write a CUE claim. I've heard the VA is strict in how a CUE claim is presented. The statutes I cited, the issues I expressly raised, and the evidence I sent in with the Supplemental Claim were completely ignored and were not addressed. That's the story. I hope it helps clarify things. At first I was stunned at the speedy decision and was fishing for clues as to the outcome in my excitement and nervousness but then my question morphed into an apparent issue of CUE after I received the decision so I posted in the CUE section.

I filed a Supplemental Claim Form and stated in my letter that I meant it to be a Supplemental Claim and I sent in about 50 pages of new evidence supporting my history of UI (which are not listed in their evidence section nor are they discussed). They didn't discuss the points with supporting evidence that I brought up in the letter. They touched ONLY on what had been discussed in previous decisions in general terms. They left out the exams that supported my contentions and included one that I have filed grievance after grievance about because it was falsified and never came to a conclusion as to my diagnosis and doesn't match any of the other evaluations I've had. Same ol' same ol'. They didn't discuss the statute that I listed that encompasses my service connection which also encompasses my EED for TDIU as it applies to my claim: 38 cfr 3.156(c) I also asked that they keep in mind that I'm speaking as a layperson presenting my case the best I knew how. THAT'S why I was so surprised to see them change the legal standpoint of the appeal.

Apparently, there have been some changes at the VA regarding CUE claims I was completely unaware of despite my best efforts to research the subject, hence, a new layer of confusion. Since I'm left feeling like I've been blindfolded and spun in circles at this point, I'm trying to obtain legal counsel.

Berta, I posted a question. I am here looking for help in clarifying these things.

I wrote the title tongue in cheek but the subject is serious. My local RO turned my supplemental claim into a CUE claim. How is this possible? I was appealing a Higher-Level Review decision with a Supplemental Claim. Yes, I'm looking for legal representation. I'm just so baffled about the whole thing.

I never identified it as a CUE claim and it's not regarding a final decision, which is a requirement of filing a CUE claim from what I've read. I'm thinking whoever wrote the decision looked at a bunch of papers on his or her desk or a poster on the wall, like in Mrs. Doubtfire, and snatched the idea off of that. You bet I'm appealing. I'm thinking I'll have to find an attorney to keep them from writing patently illegal decisions. Any suggestions for good legal counsel?

They are saying my Supplemental claim was a CUE claim. How is that? "Our prior decision dated February 27, 2020 granted entitlement to individual unemployability (IU) from December 6, 2017. On January 7, 2022, VA received your supplemental claim requesting review based on additional evidence on January 7, 2022, for review of the effective date under 38 CFR 3.2501. Based on your correspondence attached to your claim, we also considered this as a CUE claim for consideration under 38 CFR 3.105"