RockyA1911

Ah Ha!!!!! So this is the game that the VA is trying to play on me right now! I refused to fill out and submit a new VA 21-8940 Form again and they stated they did not have one at all in my file. I resubmitted the one I originally filed dated 5 July, 2005. Now they only have that one VA Form 21-8940 and it is dated 5 July, 2005! The VA stated they received my claim for individual unemployability on 26 February, 2007!!!!!! But I never submitted anything with that recent of a date on it at all, only the I/U claim dated 5 July, 2005. So this is what they must have been trying to do to me. Had I have submitted a new VA Form 21-8940 that they sent me to fill out and return with current date on it, they would have totally ignored the claim and EED of 5 July, 2005. The combined 70% evaluation rating is ED 11 July, 2005. From what I have just read, the VA can still do that to me it they want to and then make me fight for an EED.

There is no way I can take the stuff in person to my VARO. My VARO is Chicago and I live over 180 miles one way. Plus, my file is not at my VARO, it is in Cleveland, OH right now. I have two complete copies of my C-file.

This is the response I just received this afternoon. Same old BS I got the last two times. They won't answer to what happened to the VA Form 21-8940 dated 5 July, 2005 and they had to have it previously to have deferred the I/U claim in the Dec 28, 2006 decsion letter. Definitely prior to 26 February, 2007. They just won't answer that one at all!!!!! Response (Department of Veterans Affairs) 04/10/2007 02:58 PM Dear Mr. XXXXX, It appears that we have not received a VA Form 21-8940, Veteran’s Application For Increased Compensation Based on Unemployability. We cannot grant benefits without an application. Our letter dated April 4, 2007 asked you to complete the application and return it to us. Once we receive it, we will make a determination (at the time of our decision) of your effective date and you will be notified in writing of our decision. We apologize for any confusion. Thank you for visiting our website. Sincerely yours, XXXXXXX X. XXXX Veterans Service Center Manager 328/132

Well, I just received a letter yesterday. Not from my VARO of jurisdiction in Chicago, IL but from VARO in Cleveland, OH dated 4 April, 2007. It stated they were processing my claim for I/U and stated they received the I/U claim dated 26 February, 2007. It was the standard boiler plate with the VCAA form, VA 21-8940, etc and asking for proof of disability, medical evidence etc., as if this was a brand new claim. Keep in mind I submitted a VA 21-8940 dated 5 July, 2005 along with MD statement of unemployability and the VAMC Neuropsychology Evaluation stating I would be severely compromised in employment and social environment situations. Further, the same VARO in Cleveland, OH just furnished a rating decision 28 December, 2006 awarding combined rating of 60% AND DEFERRED CLAIM FOR UNEMPLOYABILITY PENDING ADDITIONAL INFORMATION. (Also is proof the I/U claim existed prior to 26 February, 2007) Again the VARO in Cleveland, OH furnished another rating decsion, 26 February, 2007 awarding combined rating of 70% with effective date of 11 July, 2005. All of the same medical, both IMO MD, and VAMC C&P and NP Evaluations are listed as evidence in both rating decisions received. Yet this is the third time I have been asked to submit this evidence. I sent them a complaint on IRIS and demanded they furnish me a copy of a claim for I/U dated 26 February, 2007 because there isn't one. If there is it is fraud. The only I/U claim I filed was 5 July, 2005 and with the same evidence that is already listed in both recent rating decisions. I also demanded to know what happened to my 5 July, 2005 I/U application VA 21-8940 dated 5 July, 2005. Does this qualify for the issuance of a Writ of Mandamus? It is almost two years now, and I will not start all over again from the beginning with an effective date of 26 Feb, 2007. I have been unemployed now 3 years and one month and my claim for I/U is going on two years old. Then I get this BS in the mail yesterday when I was expecting a decision on the I/U. I just had to vent.

For those that recall I had a IU claim pending since 5 July, 2005 which was deferred by the Tiger Team in Cleveland in Jan '07. (My claim was farmed out by my Chicago, RO to Cleveland Tiger Team). When I inquired about the deferred I/U of the Chicago RO back in early March, they stated they had just received my file back from Cleveland and would look it up. On 16 March, the VA via IRIS stated my claim was pulled and sent to the rating board. On 22 March, I received IRIS response stating that a decision had been made and I would receive the decision by mail in a few weeks. I talked to the VA this morning and was told the decsion was to send my file back to Cleveland Tiger Team for rating. It also had the NOD over math error in calculating skull loss and a CUE for EED for skull loss. So the whole mess (meaning my C-file) keeps going back and forth between my RO Chicago and the Cleveland RO (Tiger Team). Since the VA farms out claims a lot, does that mean all NODs etc always go back to the farmed out agency that rated the claim for review instead of the RO that has jurisdiction of me such as Chicago. Does this stuff seem right?

Yep! He was wearing Summer Class A uniform called Tropicals. They were made of 100% wool and were dry clean only. The Barracks cover, long sleeve shirt, and tie together made it the Summer Class A Dress Uniform, never worn in combat situations (except on liberty in bars!!!!). Marines did not ever go directly from Boot Camp to Vietnam, never. After graduation from Boot Camp, they then went directly to the Infantry Training Regiment (ITR) for two to four weeks. If Infantry they also went to BITS (Basic Infantry Training School), then on leave for 20 days and then to Staging Battalion for 3 to four weeks and then on through Okinawa to Vietnam. If they were assigned a school where their MOS was Amtrak etc., they went home on leave right after ITR and then on to specialized training in their MOS. After completion of MOS training, they then were attached to a unit and subsequently either went by themselves to Staging Battalion if they received orders to go to Vietnam and then went over directly from Staging Battalion, to Okinawa where we stored uniforms, got shots, updated records, etc and then from there directly into Vietnam.

NUCs, PUC's, MUC's etc., are not individual combat awards, they are unit awards and do not qualify as an INDIVIDUAL DECORATION. If one or more of the below listed combat awards are NOT on your DD-214, they do not count. VSM and VCM do not count. From PTSD M21-1 IV b. Evidence of Stressors in Service (1) Conclusive Evidence. Any evidence available from the service department indicating that the veteran served in the area in which the stressful event is alleged to have occurred and any evidence supporting the description of the event are to be made part of the record. Corroborating evidence of a stressor is not restricted to service records, but may be obtained from other sources (see Doran v. Brown, 6 Vet. App. 283 (1994)). If the claimed stressor is related to combat, in the absence of information to the contrary, _ Air Force Cross _ Air Medal with "V" Device _ Army Commendation Medal with "V" Device _ Bronze Star Medal with "V" Device _ Combat Action Ribbon _ Combat Infantryman Badge _ Combat Medical Badge _ Combat Aircrew Insignia _ Distinguished Flying Cross _ Distinguished Service Cross _ Joint Service Commendation Medal with "V" Device _ Medal of Honor _ Navy Commendation Medal with "V" Device _ Navy Cross _ Purple Heart _ Silver Star Other supportive evidence includes, but is not limited to, plane crash, ship sinking, explosion, rape or assault, duty on a burn ward or in graves registration unit. POW status which satisfies the requirements of 38 CFR 3.1(y) will also be considered conclusive evidence of an in-service stressor.

You missed this part of my statement quoted above. Further a Ship, Unit, etc. do not get DD-214's PERIOD. Again, I state "If the CAR is on your DD-214, it is a CONCEDED STRESSOR." On my recent rating decision in Jan 07, it specifically states for PTSD and TINNITUS of which I received 50% PTSD and 10% Tinnitus "Your DD-214, Armed Forces of the United States Report of Transfer or Discharge documents your receipt of a Combat Action Ribbon, therefore an in-service stressor is CONCEDED." Just Sayin' No need to conjure up the haints if you don't have to if you have a combat medal or award on your DD-214. I did not at any time write or have to provide a stressor letter nor did I have to provide and stressor statements when I had the C&P. Veteran's with Combat Medals/Ribbons that are documented on their DD-214 do not have to go through any of that stressor statement/letter, proof, investigation, and all that other stuff period. I didn't and I got 50% for PTSD and 10% for Tinnitus based on my receipt of CAR on my DD-214. Some think the more stressors they can come up with, the more their rating evaluation will be. NOT TRUE. A stressor is a stressor and you only need either a Combat Award on your DD-214 and if you don't you must provide stressor that can be verified. The VA cares not how many firefights and such when it comes to a VET with documented COMBAT AWARD or AWARDS, that is it, all the rest is moot and means nothing. The STRESSOR IS CONCEDED. What you receive the rating evaluation for with PTSD is HOW IT AFFECTS YOUR LIFE CURRENTLY TODAY and NOT HOW MANY STRESSOR OR HOW MUCH COMBAT YOU EXPERIENCED. With a CAR/Award alone, it meets the stressor requirement, and if you have a diagnosis of PTSD, that is it PERIOD. Don't get hung up on stressor statemnts at all if you have a documented combat award/medal. To answer the original question. If the CAR was awarded to the Ship....No that does not qualify as stressor. If the CAR is on your DD-214, it does qualify as a CONCEDED stressor.

The Combat Action Ribbon, CAR is an INDIVIDUAL award and not awarded to UNITS, SHIPS, or anything else as a group. If the CAR is on your DD-214 it was awarded to you as an individual as were the other members of your Riverine Force which is listed as a qualifier in the DoD reg that covered the combat circumstances and what is needed to qualify for the individual award. The CAR is a conceded STRESSOR and is a COMBAT AWARD. See attached SECNAV Instruction for Combat Action Criteria. Combat_Action_Ribbon_Criteria.doc

There is no such thing as a 60% rating for PTSD!!! It goes from 0, 10, 30, 50, 70, and 100% and that is it. You must have some other disabilities besides PTSD and your COMBINED rating is 60%, not your PTSD. Yes? I too am writing a book..... and KMAMIALS!!!!!!!! One year isn't anything, I would consider it the speed of light compared to how long my stuff has taken so far. I have a skull loss earlier effective date and rating pending since Nov 1976. Maybe they just have to take longer because we are Marines or something. I have heard of other folks getting their decisions in 7 months or less, but I believe that is just an URBAN LEGEND, MYTH, etc. Either way in the end, you will get retro pay back to the entitlement for the increase, so you are not loosing anything since the government doesn't pay interest anyway. Just look at it that you have the money in a savings, but you just can't touch it yet while it is still accruing. With just one year of waiting so far, it just makes you a NFG anyway. Semper Fi!!!! RockyA

OK! Now I don't know what to think. I sent IRIS inquiry a few days ago asking the status of the NOD, CUE, and I/U claims. I just received this response this morning. It is still not clear whether they did them all or just the I/U, but I specifically asked the status of each. Response (Department of Veterans Affairs) 03/22/2007 07:32 AM Dear Mr. XXXXX, It appears that a decision has been made and you should receive the results of our decision in the next few weeks. Thank you for visitng our website. XXXXXXX X. XXXX Veterans Service Center Manager 328/132

Vike said, "Now if the claimant chooses to have his apeeal handled the traditional way, then the C-file generally goes back to the Rating Activity for a SOC to be produced. However, sometimes the Appeals Team will also produce a SOC in this situation, but normally the team that made the prior decision will write the SOC. If I remember correctly Rocky choose a DRO review in this matter." If the C-file goes back to the rating activity, and they agree with me on the math error and the EED, then they can grant what I wanted, correct? If the rating activity does grant the benefits sought, then they do not need to produce a SOC. Right? Do they then just send an award letter instead? They only produce the SOC if the Rating Activity stands by their previous decision and does not grant the benefit sought. Correct? So what I'm trying to find out is a SOC is not always produced, but only when the benefits sought are denied. Is this right?

http://www.ssa.gov/dibplan/dqualify2.htm The number of work credits you need to qualify for disability benefits depends on your age when you become disabled. Generally, you need 40 credits, 20 of which were earned in the last 10 years ending with the year you become disabled. However, younger workers may qualify with fewer credits So if you were under CSRS the last 10 years before retiring, you will not qualify for SSDI because you have to have paid into SS within the last 10 years and 20 of the credits must have been earned in the last 10 years. I had previously stated 5 years off the top of my head. But, go to this sight and you will see that just because you are drawing VA Comp at 100%, I/U etc, you will not automatically be eligible for SSDI, unless you had the previous 20 quarters withing the last 10 years and it would be impossible to due if you were working and retiring under CSRS.

Don't know if that is the case or not. I do know that my C-File was just received back at my regional VARO from Cleveland, OH, The Tiger Team, on the 12th of March, 2007. My file is at the Rating Board at my regional VARO as of 16 March, 2007. So it went to the rating board only 4 days after they received it. They received my NOD on the 8th of March, 2007 and the CUE on the 14th of March. I didn't inquire about the status of the I/U until 15 March, 2007 and I was told someone would call me back and they asked the date of which my claim for I/U was submitted. They already had all the info as to date last worked 27 Feb, 2004, medical opinion from MD stating unemployable etc., They have had all that since 5 July, 2005. My 70% rating given last month is effective, 11 July, 2005. I had a 60% rating prior to that last Jan that the effective date was 11 July, 2005. I wholeheartedly agree with Vike's last statements and that is just what I did after receiving the rating decsions.

I finally got a response from the IRIS I sent last Thursday asking the status of my July 5, 2005 I/U claim and for them to confirm that they had received both the 8 March 2007 NOD, and 13 March, 2007 CUE. The response was that my file is being reviewed by the rating board as of 3-16-2007. I called the 800# also after receiving the IRIS response and the guy told me my file had been pulled and is being reviewed by the rating board since 16 March, 2007. So it looks like I will get some kind of a decision shortly and I did not file a Form 9, just a letter stating Notice of Disagreement and stated what was in error and what it should be, same with the CUE. Had I sent in a Form 9 with it requesting a De Novo review, I don't think it would be at the rating board right now, it would be processed as an appeal and put in the appeals waiting line.

Carlie, I believe you are taking some things out of context. "Clear and unmistakable error" is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993). An asserted failure to evaluate and interpret correctly the evidence is not clear and unmistakable error. See Damrel v. Brown, 6 Vet. App. 242, 245-246 (1994). There is "clear and unmistakable error" when either the correct facts, as they were known at the time, were not before the adjudicator or where the statutory or regulatory provisions extant at that time were incorrectly applied. A determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision.[/u] See Russell v. Principi, 3 Vet. App. 310, 313-314 (1992). Subsequently-developed evidence is not applicable. See Porter v. Brown, 5 Vet. App. 233, 235- 236 (1993). I take that to mean that the "must be based on the record and the law that existed at the time of the prior decision" and meaning that the evidence was a matter of record at the time and in receipt of the VA, but was not before the adjudicator. Had it been before the adjudicator, because the evidence would have manifestly changed the outcome. I take that to mean the evidence was in the VAs possession at that time and should have been before the adjudicator, but wasn't. Mine, however clearly shows that the evidence was before the adjudicator and that he failed to apply the statutory and regulatory provisions extant at that time were incorrectly applied and "that when called to the attention of the later reviewers compels the conclusion to shich reasonable minds could not differ, that the result would have been manifestly different but for the error." If the evidence was not in the VAs possession at the time the adjudicator made the rating decision, then it does not count, only evidence that was in the VAs possession and the record at that time counts. Thus whether it was technically actually before the adjudicator, or wasn't but should have been because it was in the VAs possession at the time, but not in front of the adjudicator is the same thing to me. The evidence at the time was either before the adjudicator or should have been before the adjudicator. If the VA did not have the evidence at the time and it can't be proved that they did, then the part about were not before the adjudicator doesn't mean squat in my honest opinion.

Army, I see what you mean about the red portion. Truth is I just don't know. Mine is different because they DID combine the PCS residuals with PTSD. Even though the PTSD occurred a lot earlier. I was in Vietnam 1968 - 1969 and the TBI didn't occur until 1972. Both PCS TBI residuals and PTSD share some of the same symptoms such as memory loss, anxiety, depression, irregular sleep, nightmares, word finding, and some other cognitive symptoms. I don't know if they will combine all of yours together. If they do combine them into one rating just remember, when they do that they take the highest evaluation of all of them and assign the highest rating to it. The highest you have right now is 30%. But to tell you the truth, I really am not sure and would not tell you that you are not eligible. I will say even if they combine them at one 30% or 60% with one highest at 30%, you will need a statement from an MD stating you are unemployable due to your S/C disabilities to even have a chance. When you get the MD statement, then throw the dice and see what happens is what I recommend buddy!

From what you provided, I don't see any ONE disability rated at 40% or more. Yours are entirely separate ratings, then combined for a total combined rating. My head for example is considered ONE etiology, because one of the disabilities previously rated at 10% for post concussion residuals and PTSD rated at 50%. They consider both to be mental disorders even though the TBI was a physical injury resulting in physical post traumatic encephalopathy due to TBI. They combined those TWO disabilities into ONE rating for a single disability total of 50% for the TBI residuals WITH PTSD. My total combined rating of all disabilities is currently 70%. I can't see where there is any combined disabilities in any of the evalauations you've listed. What you have listed is 64.7 something rounded down to a total combined rating of 60% with the highest disability being 30%. So far you have not met any of the two requirements for TDIU, one single disability, or if more than one disability of 40% or more with additional disabilities bringing it up to a total combined rating of 70%.

Thanks, But that doesn't answer my question. My question was does the "Brain Trauma Residuals, Left Temporal Lobe, Chronic WITH PTSD" rated at 50% count as the "One disability ratable at 40% percent or more?" I had a previous rating of 10% for the TBI residuals since 1976. The PTSD was evaluated at 50%. The VA says you can't have more than one mental disorder, so they combined the two into one rating and came up with 50%. So, since there are TWO disabilities COMBINED into one rating, would it count as JUST ONE, because they say DISABILITY rated at 40% or more not combined disability. I guess if they zeroed in on one at this stage, they would still have to take the higher of the two evaluations for mental disorders which would be the current 50% for PTSD? Am I correct?

OK, The VA combined my PTSD with my already 10% for Brain Trauma,Post Concussion Residuals, Left Temporal Lobe, chronic and then added WITH PTSD to it for a combined rating of 50% based on the higher evaluation of the 50% for PTSD. Since I am now at 70% combined rating, does the 50% for PCS/PTSD count as one of the disabilities being 40% or better with a total of a combined rating meeting the 70% threshold? This is what I have right now (Keep in mind the skull loss is in error and NOD submitted, as it should be 50% by itself instead of the errorneous rating of 30%). (Should be total of 80% combined rating). PCS/PTSD - 50% Skull Loss - 30% Tinnitus - 10% Scar - 10% Since the reg states if there are more than one disability, there must be one rated at least 40% with the other disabilities combined to bring the total combined rating of 70%. I'm wondering if they will split the PCS/PTSD stating that it is not ONE disability with at least 40% since there are two combined into the 50%?

I think you would call it "Bell V Derwinski 2 Vet App, 1992" Josephine in your case. The CUE is when the evidence WAS in front of the adjudicator at the time the rating decision was made. It is not CUE if the evidence WAS NOT in front of the adjudicator. If the evidence SHOULD have been there but wasn't and VA made no effort to obtain it, then it is the Bell V Derwinski thing I mentioned.

Hey all, this stuff sure wasn't easy, but from the help I got from all of you I got it done, and I think it is done right. If you read the CUE and the NOD you will see a lot of your inputs. Thanks, we had at least a good full squad of folks here working on this. If you catch any errors that are devastating to the claims, please jump in, so I can send in amendments if necessary. CUE_13_Mar_2007.doc NOD_5_March_2007.doc

T-Bird, My Monitor size is a 17" The screen resolution is set at 800 x 600 x 75 hertz, 32 - bit/pixel OS is Windows XP There should be some kind of feature to Auto Format to keep from having to scroll all the way to the right and it just keeps on typing without auto formating the view or the text.

The calculated retro due me is $181,740.00!!!!!!!!!!!! I can't imagine even seeing a dime of it from the VA.

I made a Excel spreadsheet. Went to the VA website and downloaded the historical rates tables. I made a column starting from 1976 thru 2005 rates. Made two columns, one for 10% rates and one for 60% rates. I then created a drag and drop formula that deducted the 10% rates from the 60% rates. I multiplied the difference by 12 months for each of the years. I then added up the 1976 thru 2005 yearly difference between the 10% and 60% rates. The total came up to $181,740.00. Makes me think the VA will delay this forever and I can't even fathom them handing over that much money to me even the it is due me. That is a great monetary loss for a veteran to have to eat due to a flawed 1976 rating decision. Do you think they will ever pay me this much? Even though it is clear they owe it to me for 30 years plus. I only calculated it for exactly 30 years worth. There are probable 3 months more, but it is too complicated. So I should at least get this.........If I ever get it and if the VA ever will grant my CUE or the NOD.