NJ_Devil_Dog

Thanks guys, I called the VARO toll free number the other day and had this curious conversation with the associate there. I was told that my C-file has been at my local VAMC since my C&P examination in '05. He also told me that I would not be able to get a copy, or even view my records at the VAMC because they are not authorized to do so. I questioned him by asking, "If they're my records, why wouldn't I be able to view them there?" He responded by saying the records belong to the VARO and not the hospital. That's pretty odd, I thought that the records were mine, and that the VARO was just the custodian of those records! Since then, I have received information from the SSA that because of the delay of their request from the VA that I would now be scheduled for an appoinment for a pysch exam by the SSA! The associate from the SSA also stated that they always have difficulty dealing with the VA when it comes to requests for medical records. I honestly don't want to have to go through two more examinations, I have a C&P for increase this monday, and I haven't received an appointment from the SSA yet. I'll see if I can get some of the records from ROI and I'll try to fax them to the SSA. I've also contacted my representatives local office and I plan on going through him to complete my request for a copy of my c-file should all else fail.

I have a C&P exam this comin monday, I have no problems going in there a requesting an increase for my SC PTSD! I don't think about the possibility of 'winning the lottery' given a successful outcome! I think about the bills I'll be able to pay back, the utilities I'll be able to have restored because of the extra money I might receive. I'm in the process of CUEing a denial from 1995 for SC PTSD, I think about the time after the denial, when I went to the VA for treatment, how a nurse asked me if I had ever filed a claim with the VA, and when I told her I had been denied she immediately responded, "Yeah, The VA always denies PTSD claims the first time around!" I think about how gratifying it will be to have the VA for once bend over and take it ...... (you know what I mean!) I think about how different my life now would be if I had been receiving any compensation since the mid 90s! How I wouldn't have a miserable credit rating right now. How I might've been able to build some equity by having bought a house. How after a decade of going it alone, I would've had the money to pay for my own education. I think about how my PTSD has sabotaged any meaningful relationship I've been in. How the guys I served with have families, homes, careers, etc. While I still have difficulty explaining to prospective employers why my work history averages out to about a job every 8 months! Or having to explain why I was fired from several jobs because I had assaulted coworkers. Would my wanting to buy a new vehicle (at an insulting interest rate!) not be justified because my current automobile has 200,000+ miles on it? Sure, if I ever received the retro I deserved for my service connected disability, there would probably be some impulsive purchases I would make, having just received a great amount of "life changing money", but who in the hell are you to go around telling others how to spend or justify what they purchase with money they have EARNED!

Hey All, Here's a real peach, I requested a copy of my c-file in August 2005, still haven't received it, nor have I received anything saying they are in the process of copying it. I filed for SSDI nearly five months age and I called the SSA to see how far along they are in deciding my claim with them, and I was informed that they were just waiting on some medical information that they've requested TWICE from the VA!?!?! I have an upcoming C&P exam to determine if I rate a higher percentage for PTSD, but I can't really wait for the VA to take their sweet-*ssed time to send the key information that SSA needs to decide my claim... the bills are piling up and the collectors are calling daily! I tried to contact the VFW Department Service Officer, but I don't expect too much from them either. I'm starting to think that I should get in touch with a Congress-person or the Governer to help put a boot up the VA's b*tt! Any sugestions? Sincerely, Gerald

Thanks Rick, I did have a sleep study done that was paid for by the VA. It was my therapist that recommended the sleep study be done because so many of the meds that he prescribed were losing their efficacy after a short period of time. At on point I was taking 5 seperate meds a night and was still haviing difficulty sleeping/ falling asleep. The sleep study results were a diagnosis of moderate sleep apnea with a severe REM component; I did't have any REM sleep until 2/3rds of the study was done. I forget how many episodes of apnea I had, but they were numerous. I'm not overweight, I don't drink or smoke. I do have an appointment next week with the VA physician to go over the results of the study (the sleep center recommended CPAP therapy) and I'll ask him to give me a statement saying that it's related to PTSD. My question still is this, is the citation from 38CFR3.310 "Proximate Results, Secondary Conditions" the correct one to use when filinf the claim?

I'm assuming that the sleep apnea is secondary to the PTSD, from the little research I've done on it (I was just recently diagnosed) it would appear that way. Plus it was the VA that recommended the sleep study to find out if I did have sleep apnea because none of the fistful of medications I was taking for sleep were working.

Hey all, Just a quick question about which Citation I should use for sleep apnea secondary to PTSD (50%)... The closest thing I could find was 38CFR3.310 "Proximate Results, Secondary Conditions", is this the regulation I should cite with my claim? Thanks, Gerald

Martin, First of all, Welcome Home! I know it may not feel that way right now but at least you've found a community that appreciates your service. I'm sort of in the same boat with you right now, except that my 'work' is actually going to school; I should've graduated in the Spring of '04, but with the PTSD, it's been an uphill struggle. I would recommend that you look into the Soldier's and Sailor's Relief Act, it may have something to do with the amount of leave time you should've gotten when you returned. (Yes you should've received ample amount of time to decompress, without penalty.) It also says a lot about promotions you may have been entitled to while on active duty. A lot of people here will tell you that you should be award a certain percent compensation with your GAF of 45, I'm not saying they're wrong, but I wouldn't expect them (VA) to give you the highest amount on your first decision. (Although I sincerely hope they do) Be prepared for a lot of paper work and file a Notice of Disagreement (NOD) with anything they give you. My first GAF score was 41 and my first decision was for SC PTSD at 30%! I filed NOD and got 50%, and I'm appealing that decision too! Best of luck, our thoughts are with you and your family, Gerald

Hey Cav, Well my diagnosis was for PTSD and depression, the GAF scores vary, when I first went to the VA I had a gaf of 41, later on during treatment I was rated at 45, 55, & 50. The VA assigned an 'overall' gaf of 55 in my SOC. I was more recently treated within the past two months, and my gaf was 45 when I first went in. Just an aside, do you or anyone else ever noticed/ had the VA assign different therapists for treatment? I feel like they're just bouncing me around from one to another.

Hi all, Just got back from the VA where I had a follow-up appointment with the Nurse Practitioner about a recent sleep study. The results stated that I have Moderate Symptoms of Sleep Apnea which affect the onset of REM sleep/ sleep disturbances. The study concluded moderate obstructive sleep apnea, with a severe REM associated component. CPAP therapy was recommended. I currently have a 50% rating for PTSD, would the results of this study serve to increase the current rating? Should I file a separate claim? What would you all recommend? Sincerely, Gerald

Ok, I just verified this under 38 USC, Part IV, Chapter 51, Sub II, para (i), and it looks like it pretty much answers my question.... I'm pretty much entitled to one year retro from the re-open date of the disallowed claim because this is the latest date under the criterion. I guess the only chance to get anything earlier than that would be an issue of semantics..... specifically whether or not you could consider the DD-215 a "correction" of my miltary records or actually an "updated" version of my records because the award was granted after I seperated from the service. I realize that this is probably be a moot point, but if Bill Clinton could argue the definition of the word "the" who knows! I'm joking of course! I guess one year retro is better than nothing, but at least I still may have the CUE on the VAMC outpatient records back to '95! Thanks Jstacy and all, Gerald

John, The CAR is specific to the Navy/Marine Corps, it has no associated award and was instituted in 1969, but to answer your question, every Marine I've ever met that served in Desert Storm received one, which isn't suprising because of the Marines being the smallest branch of the uniformed services. I doubt that they handed them out arbitrarily though, because I know for a fact that the people I've talked to all had some type of combat service there. I would also add that it probably isn't as prestigious as the CIB, but like the CIB, the VA considers it to be evidence of a combat stressor. So maybe persuing your CIB may not be merely for your own pride, jmho. As a matter of fact the Army has instituted two badges for non-infantry combat, one is the Combat Medics Badge, and the other is the Combat (something-or other badge); they include some very specific critierion for qualification as well. I mean I was in Afghanistan foe a year, experienced numerous rocket and mortar attacks on the base, but I don't qualify for it. Gerald

Woops, I guess I was off by a few years on the Duty to Assist issue, thanks for squaring me away Berta. I guess I'll have to wait for my c-file to make some logical conclusionsions. I remember when I first registered with the Lyons VAMC that I was asked if I was in combat, I replied yes. But as I mentioned I had no proof of that, not until I received my 215 in '03 at least. I understand that the Bell v Derwinski decision specifically states VA medical records being under constructive notice, whethethat might include proof of military service records (e.g. DD-214) fall under that category. I mean you have to provide them before you become eligable for treatment, right? My 214 does contain the South West Asia campaign medal (x3), as well as the Kuwaiti Liberation Medals (KLM) as well as unit citation awards, but I guess it would be a bit of a pipe-dream to expect the VA to maybe connect the dots and even consider that the veteran might have more awards not mentioned on his 214. Just a kookie thought, but I'm wondering if making the argument that the end of the campaign date is still TBD???? Well, just like I said before, I'll have to wait to get my c-file until I can verify my thoughts on the matter... Thanks again, Gerald

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

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

Thanks for the insight Berta, I think I may try to go directly through Lyons and East Orange, however; I now live in Arizona so I might wait and see if I get anything pertinent with my c-file (whenever that gets here....) Am I right when you said that your husband's files from the SSA had all the info? I just recently applied for SSDI, will I have access to the records they obtain as well (even though most, if not all of it will come from the VA)? None of the records are from the Vet Center until recently. I was seen there for a few sessions and then they reffered me back to the VA for some reason or another. Hopefully I'll start getting some more records to substantiate my claim. Until then I must thank you all for the helpful advice. Sincerely, Gerald

Thanks Berta, I'm still within the 1 year to NOD the '05 decision and the decision to change to 50%. My VSO doesn't seem too enthusisastic about pressing the CUE claim though.... So I'm dropping him like a bad habit! Even when I showed him how the dates didn't add up, he just said, "Well that could've just been a letter they sent you..." (referring to the '96 business in the SOC) I haven't received my c-file even though I requested it shortly after I filed to reopen my claim in '05..... I think I'll request it again. Berta, could you please have a look at my most recent post : http://www.hadit.com/forums/index.php?showtopic=4469&hl= You really seem to have you act together and I would appreciate the input. I read the USCs and the CFRs pertaining to these topics but sometimes the legaleeze gets pretty confusing. One last thing, I have gone through the VA to get my outpatient records from Lyons VAMC, New Jersey, but all they ever send me is the inpatient records from an unrelated operation I had at the East Orange VAMC, New Jersey...... Thanks for all your help, Gerald

Frank, In response to your question, the GAF (Global Assesment of Functioning) is a scale that the VA uses to rate claim (esp. mental or behavioral types) I think you can find the symptomology somwhere here on Hadit, bu you can look it up online. Basically the higher the GAF score the more you're able to function; i.e. if you have a GAF between 91-100 you pretty much have no symptoms or the symptoms don't affect your ability to function. The lower the GAF score the less likely you are to function normally and/or live a normal life. A lower GAF means the symptoms affect you more and more the lower it is. Hope that helps.... Gerald

Just a couple of quick questions about my claim. I reopened my PTSD claim (originally denied in'95). I am trying to claim CUE because not all evidence under constructive notice was examined at the time of the original decision. (SMRs and "failure to appear for VA examination" were the only items listed) I know for certain that I went to the examination. When I filed to reopen in '05, I was awarded 30%. I filed NOD to increase based on GAF score of 41, as well as 'possibility' of CUE because existing evidence in VA custody was not examined in '95 decision. I was increased to 50% PTSD, however the SOC now states that decision of the 'original claim' was Oct. 1996.....???? And that the evidence considered at that time was a VA examination from May 1996.......????? Can anyone help me explain why there is such a discrepancy in the date of the 'original claim'??? My second question is this.... if in '95 I was denied my PTSD claim, and following that denial I returned to the VA for outpatient treatment for PTSD, would these treatment(s) constitute an informal claim of the original claim denied in '95??? And if so, would such an in formal claim circumvent and/or substitute for a formal appeal of the '95 decision? One last question, I requested a copy of my c-file in '05 but haven'e received it yet. Is there anyway I can find out why there is such a delay or request again? I think I'm about to sever all ties with my SO....

Thanks Toimi and Frank, It's been a while since I've checked back in with Hadit; I've been busy with school (failingly for the most part, I was just informed that I was facing an academic suspension for doing so poorly, but one of my professers stuck up for me and I'll be able to continue with my classes!) I have been back to the VA and now I have a new therapist that I'm looking forward to working with. I'm still working on my claim, but I think that I'm going to go it alone without the help of a SO. The one I have isn't helping me with my concerns. He won't NOD my CUE claim for a retro decision to the '95 PTSD claim that I filed (an unfortunately never appealed; I wasn't as savvy back then). Here's what troubles me about that original ('95) claim. The original claim stated that my SMRs were the only evidence reviewed, plus VA claimed I failed to show for the C&P exam. (I previously mentioned this, as well as stating that I DID show for the exam) Now when I recently received my SOC, the VA states that in the original claim the evidence considered was the "examination of May 31, 2006" ---- THE DATES DON'T ADD UP!!!! I was claiming CUE for the '95 denial, now they're saying they originally reviewed records from '96?!?!?! Does the VA have a time machime or something? I never had any exam in that time period except for the '95 C&P exam that they claim I missed! Maybe someone out there can give me some advice. Sincerely Gerald

Thanks Terry, I did a little research before I went to file a CUE, the legal term I believe you are talking about Terry is 'constructive notice' and it was decided in '92 Brown v. Derwinski. The jist of it is just as you said. The VA is considered to have constructive notice of all records in their posession, even if they are not physically present at the time of the decision. Constructive Notice only applies to records that are relevant to the claim, which in my case I believe they are. I wasn't diagnosed with PTSD until '92 by the VA. The fact that they only considered my SRMs ('87-'92) in which I had not been diagnosed was the VA basis for my denial. If they had observed constructive notice they would have seen that my VA outpatient records ('92-'95) contained a diagnosis as well as frequent treatment and prescription records for PTSD. It took be about 15 minutes of head-butting with my SO to finally convince him of this, and the CUE was sent today. Thanks everyone, Gerald

Thanks John, I was expecting about 70% myself, I was absolutely floored when I saw that I had only received 30%! My SO even told me that in his experience a GAF of 41 would warrant 70%! And I believe that he is very competent (I think I really lucked out getting him to represent me). Should I file the NOD to get the rating increased first and then file a CUE? Based on what rating would they make retroactive payment? For example, if I filed the CUE at the same time as the NOD, and received the increase to 70%, and then also won the CUE, would they base the retro-pay on the 30 or 70%? Forgive my ignorance, but what exactly is an IMO? I'm not too sure about all the acronyms...

Thanks JIM C, for clarifying that for me, I certainly hope they don't ask me for new evidence simply because I believe I have provided them with all the evidence there is in the matter regarding my PTSD. I'm not too sure about not being able to base the CUE claim on evidence that was not before them at the time of the decision, that just goes to reason.... how can they make a well based decision on the claim if they don't consider all the evidence available at the time??? And especially if it was outpatient records that the originated at the VA?? That would be like me saying that I didn't have to pay (whatever) bill only because I neglected to check the mailbox!!! Perhaps that's a vague analogy, but you get my meaning.... I can't simply disregard my responsibility to pay my bills simply because I don't go to the mailbox to get them! It would not be as if they weren't there when I did go to check it! It's the same for the VA, they based their decision on the records before them, without considering all the records that were in their possession! They have the resposibilty to go 'check their mailbox' as well! I believe that now, in the recent decision, the inclusion of the previously omitted records from '92-'96 form a perfect basis for pursuing a CUE on the original claim! They're saying now that the evidence is good enough to consider in deciding the claim, but back then it wasn't considered?!?! Gerald

Thanks for the insight Jim, I do intend to pursue both the NOD as well as the CUE. You mentioned that I had to present new and material evidence to pursure the CUE, I have already presented the VA with new and material evidence in order to reopen my previously denied claim for PTSD in '95. Does this mean that I will also have to present even more evidence to the VA to follow up on the CUE? As I mentioned in my previous post, during the original '95 claim my denial letter stated that the only evidence they reviewed was my service medical records, but I had been diagnosed and was being treated by the VA for PTSD since '92! The evidence they had in their possession at the time of the adjudication should have at least warranted that the case be remanded for further development. Now, 10 years later they're stating that the '92-'96 VA treatment records were evidence for this decision?!?! Wouldn't the omission of these records during the '95 adjudication process alone be grounds for the CUE? Also they stated that I never reported for the '95 C&P exam, but I clearly remember reporting and spending about 3 hours with several different doctors. I have requested all my VA medical records from that time period but all I've received was inpatient records for a non-SC knee operation I had in'92. I'm guessing that my c-file might contain the records that I'm looking for and I'm still waiting for the requsted copy of those records. Thanks for the heads up about the SOs, I'm fairly confident that I have a very competent SO helping me with my case, I haven't had any problems with him yet. Sincerely, Gerald

Thank you Berta and Pete, I have re-posted this topic in research so hopefully I'll get a few more responses. I do have my transcripts as well as the withdrawal forms from school, so hopefully they will suffice as evidence of my difficulties at school. This past summer I was summoned to the Dean of Students office to discuss some (threatening) emails that I had sent to my shop supervisor from the National Guard... I'm not proud of what I did, but at the time I wasn't in the right frame of mind. She was extremely instrumental in exacerbating my PTSD condition while I was in Afghanistan.... harrassing me and threatening me with UCMJ action for my 'attitude' (I was being treated for PTSD in Afghanistan and she was aware of my condition) After we returned to CONUS I simply never returned to drill (extreme avoidance symptoms). I was listed as AWOL, but because of my prior service there really isn't much they could do. I never reenlisted for that type of BS - the harassment and bulllying and realized that the National Guard wasn't going to do anything to stop it, so I just never returned. I was also concerned about what I might do if I had to confront my supervisor again (I was having some serious homicidal ideation concerning her). I'm not too proud not honoring my obligations, but I have been extremely ill and even the thought of returning to drill would give me panic attacks. Should I try to document any of these incidents, as well as my avoidance of returning to duty and submit them with an NOD? Also, now that I am SC PTSD, how would I go about having my type discharge from the NG changed to a medical discharge?

I just received my rating for SC PTSD, they rated me 30%, stating that I had a GAF score of 50, with 55-60 assigned for the last twelve months. Shouldn't the rater have considered the lower GAF score as well? I've only recently started seeing a VA psychologist in the past five months and I obtained a copy of my first progress note from our first session and he rated me with a GAF of 41. During my next appointment with him he told me that he gave me the GAF of 41 because he was worried that if he had rated me any lower his supervisor would've questioned him why I wasn't admitted for care at the facility. I am a full time student, however in the past year since returning from Afghanistan I have not been able to complete not even one semester at school, I've had to withdraw because of attendance and an inability to finish assignments. The university has been incredibly helpful by allowing me to withdraw from classes after the drop date as well as refunding my tuition in both instances. To make a long story short, I believe that I meet the qualifications for a higher rating. My question is: How typical is it for the VA raters to 'low-ball' awards decisions? Here's the second part of my story. I am a 're-tread', having served in the Marine Corps from '87-'92, and then reenlisting in 2001 with the National Guard. I was awarded the CAR during the Gulf War, and had already been denied my original claim from '95. The claims award I just received was from that re-opened claim for which I had to submit new and material evidence. In my original denial letter dated May 03, 1995, the evidence they reviewed making the original decision was only my SMRs and they stated that I failed to report for a C&P exam (which I clearly remember reporting for!) However in the recent decision the evidence they reviewed included my recent C&P exam, my stressor letter, current treatment records, my DD214 & 215, and 'mysteriously' my VA treatment records for the time period between July '92-June '96!!!!! I realize that I was pretty naive back then, after I had seperated from active duty, but I was diagnosed with PTSD well within a year of my release date (more like less than 6 months of my release date!) I guess that my original denial in '95 more or less gave me a false reassurance that there was nothing wrong with me, in retrospect I know better. I've never held a job for longer than 18 months, I bounced around from at least ten jobs in the eight years following my seperation from the Marines and I've even been fired from three of those jobs for incidents that could be directly related to my PTSD/stress! I'm doing a little bit better now, but I can tell when I miss taking my medication, even if it's only one day! I have sleep onset problems even when I take the meds, I'm always tired, never feel rested, nightmares, intrusive thoughts, anxiety attacks several times a week, I feel isolated from my colleagues at school, have no friends or any professional/social relations, and I have CRS (Can't Remember S***). When I don't take my meds I don't sleep at all! I'm currently attending school now, but there has been a considerable drop in my performance (I used to be a solid B student, but I'm hoping to be able to get through my last two semesters with just passing grades.... and hopefullly this drop in my GPA won't affect my chances for future employment in my field of study - I'm studying Aerospace Engineering and with such a highly technical field grades mean EVERYTHING!) I feel like the 30% rating is an insult!!!! I intend to file an NOD to have it adjusted, I also intend to file a CUE for the original denial! I would appreciate anyones input on how I should proceed... should I file for the increase first? The CUE first? Or can I do them at the same time? Also, could my PTSD diagnosis in '92 constitute an informal claim? What or where can I find any information about that? I appreciate the time you've all spent reading this rather lengthly post, and I especially appreciate any information you can offer me. Thank you all, Gerald