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  1. so............... I WON MY CLAIM! sorry i had to get that out one more time. i am now 100% p&t. but my eed is december 2019 instead of the original claim date. i am trying to figure out what i need to do. should i file cue? should i just file a supplemental and ask for correction without cue? should i do something i am not even thinking of that you guys know better? reason i think cue is because in my letter, the judge specially says my original claim was 2013 and dx was 2008. it seems the vro clearly ignored this. also, they didnt even use the latest appeal date. i reopened the original 2008 claim back in 2013, but was denied and appealed multiple times and the last appeal was in 2019. Ill have to go through my c-file to get exact dates but this seems a big miss to me but maybe they are getting me on loop hole here because I didn’t reopen the original claim from 2008 until 2013, after the appeal window had closed. Any help or advice of course. Thanks guys for everything. I couldn’t have gotten here without your wisdom and encouragement! **EDIT TO INCLUDE PREVIOUS DENIALS FOR CONVENIENCE** here is the original denial: here is the the reopened claim denial: Denial for HLR: Denial for first CUE: Law Jude Decision.pdf decision-letter_osa_4-20-21.pdf
  2. Good morning need some help with trying to figure out whether or not there is a Cue in original claim my husband filed. claim was started 2013 June was when it was submitted decision April 2014. 2013, April seen for headaches imaging done. June 2013 separation physical states H/o headaches and medication prescribed for headaches. actual separation July 6,2013. Right after returning home within a week, was seen by new primary care VA doctor and ongoing for the duration of claim was seen multiple times for headaches and medication. VA claim for headaches was denied reason stating.; although there is a record of treatment in service for migraine headaches, no permanent residual chronic disability subject to service connection is shown by the service medical records, or demonstrated by evidence following service there for service connection for migraine headaches is denied. also, in a listed evidence used to determine these decisions VAMC records are not listed My husband was handling his claims alone, and wasn’t aware of how the process worked for not agreeing with the decision. This year we went out again and submitted a supplemental claim for headaches. The added evidence was My lay statement as well as his C&p exam and the remainder of time since denial of VA medical records. And were approved service connection, but we are trying to Achieve an earlier effective date. We are pending c file request and don’t know what actually got considered and what didn’t please help don’t know if this is a cue thank you
  3. I believe I may be eligible for a CUE based on the decision maker overlooked material facts of record or the decision maker failed to follow a procedural directive that involved a substantive rule (a rule that regulates a right). I originally applied for benefits in 2008. However, fresh out of the Navy and into a new job, I did not have time off I could take. So I missed my appointment. I tried to call and reschedule but could not find the information to do that. The claim was denied and closed. In 2017 I tried again as my pain was getting worse and starting to affect me on a daily basis. They stated I missed my appointment in 2008, so they did not reschedule me and my claim was denied. Fast forward to 2021. I filed again, this time I hired Dr. Bash to help since I was not able to get anywhere on my own and my VSO was not returning my calls or helping me. I was finally awarded 100%. Is it possible to use this as a basis for a CUE because I should have been able to attend C&P exams back in 2017 to show my injuries? In my record, it shows I complained of back and neck pain as well as a severe car accident (one of the nexus events). EDIT: I do not see a way to attach files to the post.
  4. The case in question is: George v. McDonough Oral Argument The Supreme Court heard oral argument in George v. McDonough, a case concerning veterans denied disability benefits and the appeals process. Under federal law, veterans are entitled to benefits under federal law for injuries or disabilities resulting from their service, including pre-existing conditions aggravated during service. In 1975, Kevin George was diagnosed with paranoid schizophrenia just months after enlisting as a Marine. He received a medical discharge and filed for disability benefits through the VA. He was denied after a medical panel ruled his condition existed prior to joining the military. Mr. George appealed to the Board of Veterans' Appeals in 1977 but was unsuccessful. In 1988, Congress acted to allow VA decisions to be appealed in federal court. In 2014, Mr. George appealed again. He argued his case should be reopened because the board denied his claims based on an invalidated statute. Lower federal courts ruled against him, and he appealed. This link will take you to the C-Span page of the hearing. This page includes the audio hearing as well as the text for those with hearing issues. You can read the Amicus Brief here. [Amicus Curiae - Latin for "friend of the court." Plural is "amici curiae." Frequently, a person or group who is not a party to an action, but has a strong interest in the matter, will petition the court for permission to submit a brief in the action with the intent of influencing the court's decision. Such briefs are called "amicus briefs."]
  5. The Board decided my tinnitis claim is rated at 10%, effective date April, 2016. The Board decided my Meniere's Disease is rated at 30%, effective date July, 2018. Based on what I understand, after these favorable Board decisions, along comes a DROC under Section 1., "Reasons For Decision", and invalidates the Board's 10% tinnitus rating stating it is "stopped", and that my separate tinnitis rating is now combined with my Meniere's Disease 30% rating, effective July, 2018. I'm attaching files for peer review and opinions.
  6. I am brand new to this group and been researching CUE and found this group today. An old post suggested that anyone considering a CUE post their write up here to receive critiques and suggestions from experience members of the forum. So here goes: I trust you will be brutally honest, it is my understanding that this is a one shot deal and if I do a poor job I cannot try again. To: Department of Veterans Affairs Subj: Motion for Review for Clear and Unmistakable Error ICO <my name> I <my name> the claimant in VA File Number <my file number> Rating Decision dated 12 August 2014, move, pro se, that the VA made a Clear and Unmistakable Error in the denial of service connection for mental health condition to include irritability, avoidance, and loss of interest. The examiner made undebatable errors in fact and the adjudicator made an unmistakable error in law resulting in an outcome that would have been different if the errors had not occurred. I am requesting a revision of decision in accordance with CFR 38 3.105, to grant service connection for PTSD with an evaluation of 70% effective February, 1, 2014. When my claim was filed in February 2014 VA Form 21-0960P-4 dated Dec 2010 required a qualified PTSD examiner to answer a series of questions during an examination. On 15 Nov 2013, Psychiatrist Timothy K Tse, hereafter referred to as ‘the examiner’, conducted a C&P PTSD Initial Examination and made several Clear and Unmistakable Errors that “manifestly changed the outcome” of my disability claim. Based on entries made by ‘the examiner’ these CUEs stemmed from ‘the examiner’s’ lack of access my VBMS and my C-File and due to ‘the examiner’s’ poor correlation of information and haphazard documenting of information that he gathered during the examination. The Clear and Unmistakable Errors in fact made during my 15 Nov 2013 examination include: 1. The examiner’s notes for VA Form 21-0960P-4 Section II Clinical Findings Paragraph 2 History sub-section a) Family History neglected to include the marital problems ‘the examiner’ noted later in the Section II Paragraph 8 Remarks. These details should have been listed as symptoms and contributed to an evaluation % greater than 0%. 2. The examiner’s notes for VA Form 21-0960P-4 Section II Clinical Findings Paragraph 2 History sub-section b) Relevant Occupational History neglected to include 20 months spent in combat zones in support of OIF that was alluded to later in the form but not identified as a Stressor. These details would have justified more detailed reading of Service Records or asking interview questions to confirm combat experience and exposure to Stressors. 3. The examiner indicated in VA Form 21-0960P-4 Section II Clinical Findings Paragraph 3 Stressors as “Not Applicable”, despite my C-File containing 2 Post Deployment questionnaires documenting Stressors ‘seeing dead bodies’, my Military Service Record containing a 2007 Navy Commendation Medal summary, documentation of exposure to multiple in-direct fire IDF attacks and the examiner’s written statement about combat deployment that clearly met the criteria listed on the form “For VA purposes, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror ” By answering Not Applicable to Paragraph 3 Stressors, the evaluation form led ‘the examiner’ to not ask probative questions for the subsequent diagnostic criteria section and occupational and social impact section of the form. 4. The examiner indicated in VA Form 21-0960P-4 Section II Clinical Finding Paragraph 4 Diagnostic Criteria sub-section a) Criteria A: “No exposure to a traumatic event”, despite VA Form 21-0960P-4 definition Veteran experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others as a symptom and the C-File containing evidence of multiple occurrences of such events, including Post Deployment Questionaries of encountering hostile fire and seeing dead and injured coalition forces. My service record also contained a 2007 Navy Commendation Medal summary for my actions during an attack an Al Qaim forward operating base, Iraq. 5. The examiner indicated in VA Form 21-0960P-4 Section II Clinical Finding Paragraph 4 Diagnostic Criteria sub-section a) Criteria B: “The traumatic event is not persistently reexperienced”, despite f VA Form 21-0960P-4 listing Recurrent distressing dreams of the event as a symptom and the C-File containing evidence documenting such symptoms that came out of a Sleep Apnea DBQ diagnosis statement stating “sleep problems were most likely insomnia and psych related.” 6. The examiner indicated in VA Form 21-0960P-4 Section II Clinical Finding Paragraph 4 Diagnostic Criteria sub-section a” Criteria C: “No persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness” despite VA Form 21-0960P-4 definition Markedly diminished interest or participation in significant activities, Feeling of detachment or estrangement from others, Restricted range of affect (e.g., unable to have loving feelings), and Efforts to avoid thoughts, feelings or conversations associated with the trauma as symptoms and the C-file containing evidence of these symptoms to include documentation of marital problems with counseling and ‘the examiner’’s notes stating a “decrease in mood.” 7. The examiner indicated in VA Form 21-0960P-4 Section II Clinical Finding Paragraph 4 Diagnostic Criteria sub-section a) Criteria D: “No response provided” despite VA Form 21-0960P-4 listing Difficulty falling or staying asleep, and Irritability or outbursts of anger as symptoms and the C-File containing evidence of problems staying asleep and an alcohol related incident that occurred after return from combat deployment. 8. Clear and Unmistakable errors in the Diagnostic Criteria section resulted in erroneous or skipped assessments in VA Form 21-0960P-4 Section IV Stressor, VA Form 21-0960P-4 Section V Symptoms, and Section VI Occupational and Social Impairment. 9. The examiners closing remarks included the following sentences “The veteran's two deployments in 04 and 07 did not expose him to traumatic events or he has any PTSD symptoms. But he did have some decrease in motivation and problems with relationship with his wife. He denied any vegetative symptoms of depression. He denied any anxiety issues.” Despite ‘the examiner’ having answered “Not Applicable” to VA Form 21-0960P-4 Section II Clinical Finding Paragraph 5 Symptoms that asked about Disturbances of motivation and mood, Difficulty in establishing and maintaining effective work and social relationships, and Inability to establish and maintain effective relationships. Year 2001 – Title 38 U.S. Code § 1154.b directs “In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, air, or space organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.” The VA Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes was amended via interim final rule on 4 August 2014 and was in force at time of the 12 August 2014 rating decision. The interim final rule directed the following: “The new diagnostic criteria for PTSD no longer include the subjective reaction to the traumatic event (Criterion A2), such as experiencing fear, helplessness, or horror, but the revised stressor criterion (Criterion A) includes a more explicit definition for stressors as exposure to actual or threatened death, serious injury or sexual violation.” This change to the Schedule for rating made it imperative that ‘the examiner’ be aware of exposures listed in C-File and Service Record. The examiner clearly did not conduct my examine in accordance with VA policies that were in force at the time of the rating decision, it was incumbent on the Ratings Board to identify this discrepancy and adjudicate my claim accordingly as required by O.G.C.Precedent 9-94 for claims “still open.” The Clear and Unmistakable Errors in law made by adjudicators include: 1. The adjudicator failed to uphold their responsibility to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture note as required in CFR 38 4.2. The examination notes indicated that ‘the examiner’ did not review my records in VBMS nor any other records that were available to the VA at the time of the examination, yet the adjudicator failed to interpret the examination report along side the C-File and not the discrepancies. 2. The Rating Board failed to uphold their responsibility to conscientiously study every element in any way affecting the probative value to be assigned to the evidence are required by CFR 38 4.6. The Ratings Board had access to all assembled facts yet did not identify the record contained 20 months of combat deployments, 2 Post Deployment Questionaries, and a Personal Award for actions in Iraq while ‘the examiner’ found no stressors. 3. The Rating Board failed to uphold their responsibility to apply reasonable doubt after careful consideration of all procurable and assembled data as required by CFR 38.102 when they affirmed the examiner’s diagnosis despite the C-File containing significant information about combat deployments and changes in behavior after the combat deployment. CFR 38 3.102 Addresses Reasonable Doubt and states ‘When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.’ CFR 38 § 4.2 Interpretation of examination reports. Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. CFR 38 § 4.6 Evaluation of evidence. The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. Closing argument The initial Clear and Unmistakable Error occurred when ‘the examiner’ failed to comply with CFR 38.102 by not exercising careful consideration of all procurable documents and when ‘the examiner’ failed to list facts discovered during the examination in all the appropriate sections of the DBQ. The fact that VBMS was down on the day of the appointment did not mean the information in the C-File was not procurable. The examiner not identifying the C-File documented stressors lead to a cascade of errors that ultimately resulted in an inadequate medical diagnosis that should be assigned little probative value. The examiner’s failure to review the available facts prior to making a diagnosis should have led the Rating Specialist to comply with CFR 38 4.2 and return the report as inadequate for evaluation purposes due to failure to ‘interpret reports of examination in light of the whole recorded history.’ Additionally the Adjudicator should have complied with CFR 38 4.6 to ensure ‘every element in any way affecting the probative value to be assigned to evidence in each individual claim .. be thoroughly and consistently studied by each member of the rating board.’ The following elements must be met in order to justify reversal of the final decision: Element #1 – The Claim decision must be final. Element #2 – The correct facts were not before the adjudicator at the time of decision. Element #3 – The error is undebatable. Element #4 – The outcome would have been different if not for the error. This document provides information that fully meets the criteria established in 38 U.S.C. § 7111(a) and now having been called to your attention compels a conclusion, to which reasonable minds cannot differ, that the result would have been manifestly different but for the error. The evidentiary record available to the VA at the time of examination clearly indicated that a stressor occurred during combat deployment and that symptoms consistent with PTSD were present at the time of examination, but the adjudicator did not have all the facts because of the Clear Errors made in the PTSD Examination. The record at the time of examination contained several symptoms that justified a service connection for Mental Health Condition which is a manifestly different outcome. I have clearly shown that the correct facts were not before the adjudicator at the time of the decision, the errors made are undebatable departures from VA regulations and applicable law, and the outcome would have been different if not for the errors. Therefore, I submit that the appropriate corrective action is to reverse the 2014 denial decision for Mental Health Condition and set the Effective Date for 70% PTSD to February 1, 2014. Respectfully Submitted, <my name>
  7. I have a question according to M21-1, Part IV, Subpart i, Chapter 3, Section A - General Criteria for Sufficiency of Examination Reports the examiner has to be done by one of the below. Mine was done by a Licensed Profession Counselor. Is that cause for CUE? The Dr. stepped in at the very beginning and said he was "mentoring" her, he again stepped in at the end and asked if I had questions. That is all I saw of him. board-certified or board-eligible psychiatrists licensed doctorate-level psychologists, or the following other mental health professionals, under the close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist: doctorate-level mental health providers psychiatry residents, and clinical or counseling psychologists completing a one-year internship or residency.
  8. I am in the process of working on my appeal for an EED for Bilateral Pes Planus with Plantar Fasciitis rated at 50%. Here is a history of my claims. 1. Filed a claim in 2001 to file for foot disability with a VSO. Nothing was done about it. The VSO made a couple requests following up and it was ignored. 2. Jan 2002 with a different VSO my claim opened. It is denied by the VA stating that service records show no complaints of claimed disability. I did not appeal. 3. Filed again in 2009. Claim was denied because I did not submit new and material evidence. 4. Filed a NOD in 2010. It would take the VA 3 years to respond. 5. June 2013 - I get a statement of case where the VA stated again that I did not submit new and material evidence. They also stated service medical records show no complaints of claimed disability. 6. In 2018 I get my C-file and find in there service medical records that show proof of my disablity. My service records show normal feet on my entrance exam. Two doctors visits showing diagnosis of flat and plantar fasciitis. An Xray confirming flat feet diagnosis and an exit exam showing abnormal flat feet with a pes planus diagnosis. 7. in 2019 i File a supplemental claim for flat feet and I submit the service medical records I find in my C-File. I also submit an IMO from an outside doctor. I get an exam. I get service connected but lowballed with 10% 8. In 2020 I hire an attorney and we appeal the decision with another supplemental claim for a higher rating and EED. I get rated at 50% but the EED is denied. The decision would be in early 2021 9. We file an HLR for the EED and that is denied. The senior rater said no error was found....surprise suprise. Here is where I run into my dilemma on how to tackle this. The VA has repeatedly denied me by saying my service medical records show no complaints of the claimed disability. However, the evidence I use to force them to reopen the claim is service medical records I got from my C-File so it is clear they had the records. I do not know if this would impact 38 CFR 3.156(C) because these records clearly are part of my claims folder. Of course I can't say as to when they became part of my claims folder. They could argue that the 38 CFR 3.156(c) does not apply but then that wouid bes a clear CUE because they had the records and ignored or missed them. While reviewing my letters I noticed something odd. All of my decision letters list as part of the evidence my service medical records with the exception of 3 and all of the apply to my recent decisions related to my feet. The letter that grants service connection and low balled me at 10 percent do not list the records but cite 38 CFR 3.304 for direct service connection. My decision letter that grants me 50% also does not list my service medica records. The HLR decision letter where no error was found also do not sited service medical records. I think this is intentional because citing this as evidence clearly would show an EED is warranted. The reasons and bases do not explain why they granted me service connection. They only cite the CFR and make not mention of any of the evidence.
  9. BLUF: Will I get paid retroactive pay for a CUE for a retroactive 10% increase? I retired from the Army on 30 September 2016 and filed claim right away. The VA gave me 0% Service Connected for degenerative arthritis of the thoracolumbar spine. I thought that was messed up but thought nothing of it. Fast forward to February 2022 and I receive a DL from the VA saying that "a clear and unmistakable error is found in the evaluation of degenerative arthritis of the thoracolumbar spine and a retroactive increased evaluation to 10 percent disabling is established from October 1, 2016." The DL goes on to say that the rating decision dated December 1, 2016 incorrectly assigned a 0 percent evaluation when the evidence clearly showed a higher evaluation was warranted. The effective date of this grant is October 1, 2016. Service connection has been established from the day after your discharge from active duty... anyway, this letter was received at the beginning of February... I haven't received any additional payment from the VA for this, be it retro pay or whatever... My records were updated to show that the 0% never was and that it was 10% all along, which is not the case. In 2018 I received $4k for something that was retroactive and $545 in 2019 for something... so, they do sometimes do retro pay. Anyway, I would appreciate anyone's help & experience with this. Thank you.
  10. Is it possible, or advisable, to file a CUE for a decision that excluded TDIU consideration, while concurrently having a new claim filed for TDIU? I should have filed a CUE, given the success of a case posted here by the member named Dustoff 11, (posted Tuesday at 10:26 AM): Some back story here: I filed my original claims in 2016, for which I was granted 80% combined. My attorney included "failed to consider TDIU" on our NOD following that decision of 80%. Yet again, the response to my NOD from the VA made no mention of TDIU. Fast forward to January 2022, I filed the TDIU request form, VA Form 21-8940, the official VA form to apply for Total Disability Based on Individual Unemployability (TDIU). However, it appears I may have a CUE concerning TDIU based on what was said by Dustoff 11 on the thread linked above. Based also on the fact that VA has ignored my issue of TDIU twice. First, in its failure to respond to an inferred claim of TDIU in my original claim and second in its failure to acknowledge TDIU stated on the NOD. My question is, is it possible (or even advisable) to file a CUE for failure to consider TDIU in the original claim and again on the NOD? All VA health records repeatedly show employability issues that VA could not have missed, given the evidence they cited in their response to my NOD. Can I file a CUE on this matter of TDIU even while I have a pending TDIU claim filed as of January 2022? What should I do? How long do CUEs take? Should I withdraw my TDIU claim filed in January 2022? The difference is BACK PAY, one with an effective date much earlier. What should I do? What can I do?
  11. Good day, I am building a case to file for Menieres Disease and I need a vertigo claim approved. In 2006 I filed for vertigo that began in non combat at Fort Leonard Wood in 2002, I have many documents stating the diagnosis was vertigo. It got worse in 2003 after two TBI events in Iraq. After Iraq I sought treatment and was diagnosed with PTSD with panic attacks. During the 2006 C&P the doctor claims I stated that it feels like the vertigo attacks come while I'm having a panic attack. I doubt I said this, but whatever. Also the vertigo started a year before I went to Iraq, so they should not be conflated. So the VA denied my claim for vertigo saying I stated the vertigo attacks come with the panic attacks, and so should be considered under the mental health rating for PTSD. I'd like to file a CUE, that the VA took a lay diagnosis (mine, that they were panic attacks) over multiple doctor diagnoses of vertigo. Can I file a CUE for this? I'll also stress in my planned CUE filing that the vertigo began (and was diagnosed by mail doctors) a year before any combat. Thank you for any input!
  12. Greetings, I have been battling with the VA since early 2017 with my disability claim(s). In September 2021, I filed a supplemental claim due to the presumptive condition changes for OEF/OIF/OND and burn pits / particulate matter exposures. They followed through and rated me at 100%, but I then filed for a higher level review because they put effective dates in October (the date of my LHI exam, and not the effective date of change in law or date filed for disability). It is still on-going, and they did a partial grant. I didn't ask for a CUE claim, but they found several CUE claim issues upon that higher level review. So sleep apnea, IBS, hemorrhoids, and etc are being addressed because the VA failed in their duty to assist. They sent my records to an LHI contracted physician (one I saw back in October and she had favorable findings for me then). Presently, I have a combined disability of 100% P&T. And for now (I'm 39), I have gainful employment at a decent salary. Miraculously enough, PTSD and mental health are not among my medical conditions or concerns, even after 20 years in the USAF/ANG. As I go through life, I am finding it more difficult to do tasks independently. My wife cuts my toenails because it is hard for me to reach my toes and use clippers (right hand dominant), and I usually end up cutting too much and/or getting an ingrown nail. I also have one of those as seen on TV gizmos to help put on my socks. So, needless to say, managing my feet is rather difficult for me (and balancing on 1 foot in the shower to scrub them with soap is nearly impossible). The VA has provided me with special shoes and cork inserts to help with the flat feet. I wear collared shirts for work, and it is difficult to do the buttons on the collar as well as the cuffs. I almost always have to have my wife do those for me. I have about 20 medications that the VA has prescribed to me for all of my medical conditions and issues. And my wife is quite persistent about me keeping track of my medications. She bought me one of those medication holders that has a tube with 4 spaces (breakfast, lunch, dinner, bead) for each of 30 days. Just filling those sometimes is an awful pain in the ass with my hands and fingers. I have tried several times to get the VA to consider flare ups in the rating for my cervical spine and knees. Each time it has failed. So now, I have the DBQ's printed and on file with my PCP. The next time I have a flare up, the PCP will see me that day or next day and go through the DBQ's. Then I'll file for an increase, and I may try to file for an earlier effective date as I have not run out of appeals/reviews and I'm still within a year. And my flare ups When my neck gets tweaked, it is nearly impossible to turn my head left or right, my head is pretty much frozen at a slight rightward angle and limited ROM. This usually results in my right shoulder having a flare up as well. When my right shoulder goes wonky, I have severe pain and need to wear an immobilizing brace. And my my lower back will go out with shooting pain from lower back to my feet, unable to walk long distances, and if I pick up my son or dog, I will lose feeling and fall to the floor, so I don't do that when my back is flaring up. And sometimes lifting my younger son or dog will cause this problem. For my knees, these usually go out when I'm deep in the woods walking on uneven terrain, and braces/K-Tape don't seem to prevent the knees from becoming nearly impossible to use and they are in such pain that I can't flex them. It can take me several hours to walk/limp even 3 miles back to the truck when my knees go out. So now, I don't go as far out into the woods if it is an area that has zero cellular service. I also have problems with both wrists, and I have to sleep with braces on to keep them from curling my hands inward at night. So trying to manage a CPAP or even the buttons on my pajamas to take a piss gets very irritating and frustrating at night. I am to the point where I don't drink anything after 7pm so that I don't have to get out of the bed at night to relieve myself in the bathroom. To what degree is loss of use considered for extremities? And to what degree is A&A factored into basic tasks of hygiene and grooming and medication management? At least once per day, my wife does help me with something related to personal hygiene or dressing. If I'm not quite at the point for SMC type benefits, what should I be documenting and keeping track of, and where? Do I schedule more frequent appointments with my doctor? I have a community care provider as the local VA and CBOC's are well over an hour away from me. Also, is SMC paid in addition to, or in lieu of scheduler VA disability payments? I have an upcoming appointment with my doctor to discuss ED related matters, and it appears that several of my medications for service connected issues (arthritis medications, sinus medications) have ED listed as a potential side effect. So, I will be working on an SMC-K package for that. Lastly, I have tried and failed in regards to an earlier effective date for tinnitus, hearing loss, and rhinitis (all rated back in 2017 with an adjustment in 2018 for rhinitis). When I got off of OND/OIF orders in 2011, I went to the VA in 2012 for those issues. I was told that I should go see the VA and they'll take care of you. But nowhere did anyone offer any assistance or direct me towards a formal disability claim. Could it be seen or considered an informal claim (under those old rules) by having sought a VA diagnosis and/or treatment within 1 year of release from Active Duty? Should I try a formal CUE claim on this issue, or just accept defeat? Who knows, maybe 21-432 ARELLANO V. McDONOUGH might help with this if SCOTUS affirms for the petitioner. I do have a digital and electronic copy of my C-File from 2017-2018. I haven't requested an updated copy recently. But the last copy I got was over 1800 pages of documentation. I'm also looking forward to HR 3967, if that passes, the effective date for my sinusitis and migraine headaches could be back to my initial claim in May of 2017. But with that said, if it passes, and I file a supplemental claim for sinusitis, migraine headaches, and sleep apnea (if they grant it) will they review the present rating tables, or the rating tables at the time of the application? The VA published changes to the rating tables for ears, nose, throat, sinus, sleep apnea and etc on Feb 15th in the Federal Register. Thank you, Disability Rating Decision Related To Effective Date chronic strain right thumb (previously evaluated under DC 5224) 10% Service Connected 5/7/2017 shoulder condition, right 20% Service Connected 5/7/2017 radiculopathy of the right upper extremity 20% Service Connected 10/11/2018 radiculopathy of the left upper extremity 20% Service Connected 10/11/2018 internal derangement of the left knee 10% Service Connected 2/24/2020 internal derangement of the right knee 10% Service Connected 2/24/2020 radiculopathy, right lower extremity involving the sciatic nerve 10% Service Connected 10/12/2021 radiculopathy, left lower involving the sciatic nerve 0% Service Connected 11/10/2020 internal derangement of the right ankle (claimed as ankle condition, right) 10% Service Connected 5/7/2017 left ankle strain 10% Service Connected 10/30/2017 bilateral flat feet (pes planus) 30% Service Connected 9/12/2019 lumbosacral strain 10% Service Connected 11/10/2020 cervical strain with degenerative arthritis of the spine (previously rated as musculoskeletal - neck/upper back (cervical spine) (to include neck condition)) 10% Service Connected 10/7/2019 rhinitis with eustachian tube dysfunction 10% Service Connected 10/11/2018 sinusitis 50% Service Connected Gulf War Presumptive 3.320 8/5/2021 tinnitus 10% Service Connected 5/7/2017 bilateral hearing loss 0% Service Connected 5/7/2017 migraine headaches 0% Service Connected Burn Pit Exposure 8/9/2021
  13. 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.
  14. In 2002 my back claim was denied by the VA. The reason for the denial was that even though I was seen for back complaints (9 times) There is no diagnosis of a chronic disability. Here is why I think this could very well be a CUE Claim. The determination of no diagnosis of a chronic disability was may by someone unqualified (VARO or Reviewer) to make that determination. There is no documentation from a single medical professional in relation to this claim concerning my medical history. I have seen some case law on this such as Sokowski v. Derwinski that states "Remand was required of the veteran’s claim for service connection for actinic keratoses given that medical evidence contrary to the veteran’s medical evidence was lacking in the record and the BVA merely relied on its own unsubstantiated medical conclusions in denying the claim." or Moore v. Derwinski that says "BVA may not reject medical evidence on the basis of its own unsubstantiated medical conclusions." There actually is a good bit of case law on unsubstantiated medical opinions by the VA and I wondered is my situation could apply.
  15. I had no note of any issues with my back upon entrance nor any prior medical records of any kind. I worked as an aircraft structural technician for almost five years. I'm a woman and weighed around 115 lbs at the time. We carried 70 lb tool boxes routinely. There is a note in my service medical records of my going to the ER or doctor with a complaint of a back injury that mentions that I felt it was caused by carrying a 70 lb tool box. I was told to wear a brace and they probably gave me something for the pain (I don't remember the details but it's in my claims file). It was the only incident mentioned during service but I've had chronic issues with my back since. I filed a disability application for the back condition within three months of separation and was denied. I didn't appeal (I was young and dumb), and the claim for that condition was closed. My ratings decision and denial letter stated simply that the condition "was not incurred in service". Do I have a CUE claim? It goes back to 1990.
  16. **This question may be posted in the wrong section, I apologize if so.** I believe I have a CUE (or multiple) and I need input if I am wrong or if there is another route I need to take? In my first year out of service claim (2016) I claimed "Shoulder Condition" for both of my shoulders separately and "Numbness & Tingling" for both hands. I have recently found copies of my STRs and I found where I complained of shoulder pain four times (including in my exit exam, which also included a complaint of numbness and tingling) and I also found where in 2012 it was written in a periodic health assessment that "Pt has c/c of (L) shoulder pain x 1 year, Pt refer to sick call". So, from 2012 - 2015 I complained of shoulder pain four times in service and then on exit I also complained of tingling and numbness in my hands. Nothing was done as far as treatment goes in service but I complained multiple times. I was denied my VA claims for all four conditions in 2016 with the exact same language for each claim as follows: Service connection may be granted for a disability which began in military service or was caused by some event or experience in service. Your service treatment records do not contain complaints, treatment, or diagnosis for this condition. We did not find a link between your medical condition and military service. The evidence does not show an event, disease or injury in service. We received your medical evidence which discusses the symptoms of your medical condition. Service connection for left shoulder condition is denied since this condition neither occurred in nor was caused by service. Service connection for left shoulder condition is denied because the medical evidence or record fails to show that this disability has been clinically diagnosed. Is this considered a CUE or what route should I take now that it is five plus years later? It says on the first page of the decision letter that they had my STRs as evidence so they should have seen these conditions complained of, right? But it states in their decision letter for all four conditions that my STRs do not contain complaints for these conditions? So, it appears that they did not see my complaints? My shoulders are much worse now (just had x-rays taken and arthritis was noted in both shoulders at the VA) and the numbness and tingling is still throughout my arms and hands. Thanks for any input or suggestions!
  17. Ok I understand many feel I just be posting and fighting with va over nothing. My old name on hadit was yulooking. You can put it in the search and my old post for the cue claim I won will pop up. Carlie Berta many other help me and I learn alot from hadit I had no ideal what a cue was until I followed Berta cue back than I also used hadit back than to vent lol I post all this so that other understand I feel I have more year fight va than some lawyers. And vso I have been to the court pro se twice. And won remands for both. Fast forward. I am now fight for smc benfits that were never inferred back in 2001. Might go back till 1993. This is why va is all over the place. I was granted smc l aid attendance. But I receive in home care pay for by va hospital. Which is smc r. All this I got remand from the court to bva to address. And it been nothing but games I now have a petition at the cavc which I am just waiting on judge decision on I got be the first veteran we're a bva judge stated if I refuse a exam base opinion on my record. So yes I don't wait I push. Qtc I put in a better business complaint yesterday and call white house line Today I get a call from qtc I don't have to go to exam and they got to base there opinion on my record. I would never tell a veteran to refuse a exam! The reason I can refuse is because my bva remand state this. Because I press the bva about having 8 comp Exam for smc benfits. Which are to b based off your record. I really just venting. Last thing guys if you get a cavc remand. send these law to bva before they remand. To ro. A cavc is not a do over. Someiano v. Principi, 17 Vet.App. 305, 312 (2003) (Court noted that it would not be permissible for VA to undertake further development if purpose was to obtain evidence against appellant’s case) Adam v. Principi, 256 F.3d 1318 (Fed. Cir. 2001), (in which the court stated that it would be improper for the Veterans Court to remand a case to the Board to give the DVA another opportunity to develop evidence needed to satisfy an evidentiary burden it had failed to satisfy the first time, i.e., to “attempt to introduce new evidence sufficient to make up the shortfall” in the agency’s proof. Id. At 1322.” The board has remand my loss of use under smc to develop evidence to denied loss of use. I have a 25 year record of loss of use. I have a va specialized loss of use exam that Address all my loss of use and stated it was the result of my elbow and cervical injury It was a favorable exam. I have bva decision which address my lost of use 2001 2004 and 2012. Use the law against them.
  18. Hello Everyone, I have looked for guidance online pertaining to my unique situation for quite a while and I could not find any useful information, so I thought I would post it here after discovering this amazing website and after seeing so many knowledgeable individuals in these forums helping others. I truly apologize if I am giving more information than what is needed. I'll preface this by saying that I was not seen during my time in service for Sleep Apnea directly, but had developed the symptoms during my service, and was not even aware of the condition myself. I was hesitant to file for something that I was not seen for, but because of the insistence of my wife, I included it in my claim. I separated from the United States Army in APR 2017 and filed an initial disability claim on January 25, 2018. I went to a sleep study on March 3, 2018. A decision was made for this claim on March 28, 2018. I was granted 70% service connection for the following: - Sleep Apnea - 30% - Bilateral Pes Planus (claimed as bilateral flatfoot) - 30% - Lumbosacral Strain (claimed as low back condition) - 10% - Radiculopath Right Lower Extremity - 10% - Radiculopath Left Lower Extremity - 10% - GERD - 10% - Right Shin Splint - 0% - Left Shin Splint - 0% I filed for an increase on the Sleep Apnea condition in OCT 2018 after the VA scheduled an additional sleep study in OCT 2018 where the provider advised that I needed a CPAP. I am unsure why they determined I needed a CPAP in OCT 2018 when I had an initial sleep study in MAR 2018, but I was just following the VA's directions. I had suffered through these symptoms for years without the use of any CPAP therapy, so I was still unaware when I would receive a CPAP. I ended up purchasing one out of pocket. The VA sent a decision in NOV 2018 stating the following: 1. The rating dated March 28, 2018 was clearly and unmistakably in error for granting service connection for obstructive sleep apnea. We are proposing to discontinue service connection for this condition. 2. A decision as to whether the rating dated March 28, 2018, was clearly and unmistakably in error for granting service connection for Lumbosacral Strain is deferred. 3. A decision as to whether the rating dated March 28, 2018, was clearly and unmistakably in error for granting service connection for Radiculopathy Right Lower Extremity is deferred. 4. A decision as to whether the rating dated March 28, 2018, was clearly and unmistakably in error for granting service connection for Radiculopathy Left Lower Extremity is deferred. 5. The rating dated March 28, 2018 was clearly and unmistakably in error for granting service connection for GERD. We are proposing to discontinue service connection for this condition. At this point, I'm unsure what to do and what option to pursue, so I decide to not challenge their decision. About a year later, I receive a Decision Letter on 10/3/2019 stating: - Sleep Apnea 30% - Severed - 1/1/2020 - GERD - Severed - 1/1/2020 - Lumbosacral Strain (claimed as low back condition) - 10% - Continued - Radiculopath Right Lower Extremity - 10% - Continued - Radiculopath Left Lower Extremity - 10% - Continued During the entire process after separating the military, I was clueless on how to schedule appointments through the VA, how to log in to ebenefits (Now VA.gov), and how to access additional resources. Fast forward to MAR 2021. I am at an appt with my provider and she is looking through my medical history and sees the sleep study scans. I advised her that I have a CPAP, but tell her the VA never sent me one and they severed the service connection due to me not being seen while in service. She then submits a referral for the VA to send me a CPAP and advises I should try and appeal this. She states that if I did not have the symptoms before the military, filed within a year of separating, and the sleep studies show that I currently have obstructive sleep apnea, then I should appeal it. I reluctantly go to the VA office in my city and present this situation. He echoes the statement of the initial claim filed within one year of my separation and the sleep study results showing OSA. I do some research and see that Sleep Apnea is not a condition mentioned in the list that the VA considers for automatic service connection. The VA representative assists me in submitting a supplemental claim on July 9, 2021. I thought this was past the year mark of appealing, but he submits it anyway. On July 15, 2021, I receive a decision stating it was denied. The VA rep advises me that in the system he is looking at, the decision notes state there is no nexus link, so I would need to get a Nexus Statement from my provider and it should finally help get it approved. My provider has no appointments until 2022, so I do research. I find Dr. Joseph Krainin with www.singularsleep.com. I get in contact with them, and after reviewing my medical history, they advise that they can provide me a Nexus Letter linking my Sleep Apnea secondary to my Lumbosacral Strain and Bilateral Radiculopathy, as well as providing additional information on the likeliness of the Sleep Apnea developing during my service since it was reported on my MEPS document. I spend $800 on this document and hope it will change something. I submitted this appeal on August 24, 2018 containing this Nexus Statement document. In conclusion, based on how this decision goes, should I give up on the Sleep Apnea service connection after this? Without me being seen during my actual service, is it likely that the VA will not grant it? I hope this was not too much information once again. Thank you all for any help you can provide!
  19. Hi everyone, I would like to know if this paragraph means VA granted my CUE for my right knee that it was denied in 1975. Thanks for reading.
  20. I recently had a HLR and when I checked it, it said that it was closed but now it's back open and it says they found an error. I wanted to find out does anyone know how long it takes to get results after they change your case to this status.
  21. Request to Reinstallation for Sleep Apnea and Low back condition claims Back in January 2021, I received via mail a CD containing information to be used before the Board of Veteran Affairs for the MDD condition. I discovered VFW submitted a document on Jul/2011 where he withdraws the claims for Sleep Apnea and Low Back condition. This was the first time I learned about this document. For the claim of Sleep Apnea, I hand-delivered favorable IMO to the Hearing officer in 2010 and at the time they had also an IMO for the Low Back Condition(2008) along with a full medical report from the same doctor. After reviewing the CD and my paperwork, I asked the VA via phone on Feb/2021 about communications between July and September 2011. The VA representative emailed me a document dated 8/1/2011(attached) with multiple issues on it and an indication of; “We also withdrew all other issues on appeal as per your Veterans of Foreign Veterans letter dated and received July 2011". I kept working on the claims throughout the years; these were done in two different RO and to all effects VA indicated that they were working on these claims as presented in their communications on Feb/2012 and Jun/2012. Interestingly, for the latter communications, VA does not indicate a withdrawal of appeals nor that my claim is “reopened”. Finally, on Apr/2013, VA use different wording like “denied the reopening” since “Evidence no show event, Evidence not new. Claim not reopened. Not Substantive”. While still, VA did not evaluate IMO on the record. Out of frustration, I did not further pursue these claims; until I received the CD in January 2021, and realize that my claims for Sleep Apnea and Low back claims were withdrawn without my consent in 2011. Significantly, the VFW letter offers a conditional appeal, where indicates: (1) “As longer his appeals for increase in the other conditions…”, (2) “He would be satisfied with the decision made,” (3) “This withdraw does not mean…” Additionally, there’s an undated additional handwritten note in the printed proposal that indicated another “conversation” with the veteran. As I learned under Warren v. McDonald, docket no. 15-0641 (Sep 14, 2016) it is, held: An appellant or his/her representative may withdraw an appeal, but unless the withdrawal is on the record at, it must be in writing. A withdrawal “is only effective where withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” I tried to get a hold of the VFW trough 12 emails (for 2 months) and multiples calls without success. I did change the VSO. Also, I wrote a letter detailing the events to the VA. Now the VA wants the request in a Form (20-0995). This form explicitly indicates that is to be used for “New and relevant evidence to submit for VA to consider”. I request that my claims of Sleep Apnea (2008) and Low back(2005) be reinstated at their original claim date since they were worked continuously since their inception and there was evidence that were not evaluated. As today My sleep apnea is worse indicated in a VA Study in 2019 and had Spinal Fusion in Kentucky (2015). I appreciate any help you can provide.
  22. This one is a doozy... Below are recently written summaries of my situation that I have sent to various VSOs and firms doing pro-bono work. I have already applied to the NLSVP for help with my discharge upgrade through the Navy, but that is likely to take a year or more before I will even hear back from them. I also just applied to the Yale NVCLR after running across their recent success with the Army discharge review boards. I have decided to go with the DAV for my VSO, but I want to be as thorough with this as I possibly can. Questions that I have- How do I proceed without screwing myself? I have been unemployed for a year now and while I would love for every single avenue to be explored, at this point 9+ years later I just any help I can get. What is the best way to collect and present character statements? I plan on contact anyone I can on social media from my unit to vouch for both my time in service and my time post discharge, but I don't want to put too much effort in a potential "small" category of importance. I know of others in my unit who were also ADSEPd following our deployment for misconduct in similar circumstances, many with differing outcomes- Are these potentially relevant to my case if I can get permission to cite their discharges? What would be the potential bars from getting backpay on my original 2012 claim that was closed? I missed my C&P exams, but I never knew they were scheduled in the first place.- Also, in light of the recent Federal circuit decision , to what degree was the VA obligated to notify me of the new evidence they received in 2014 at my new address? In order to register an account on e-benefits, I had to fill out a survey that included a soft credit check and questions regarding my past addresses. They knew, or were able to on demand pull and verify, every single address I've lived at since getting out, but up until two weeks ago my mail was going to the WRONG address I enlisted from? Hell, even the email addresses listed on my VA profile were my parents! None of the contact information in the VA systems I've come across has been even remotely accurate... This is a lot, but I feel as if there are a lot of things at play in my situation. I can post redacted copies of what I have or clarify further on anything needed. Thank you in advance for reading. -tfy ------------------------------------------------------------------------------------------------------------------------------------------- START HERE FOR BACKGROUND INFO Subject: New Service Records Discovered by VA- 2012 Claim Good Afternoon Mr. XXXX, I was ADSEP'd (Administratively Separated) with an OTH (General-Under Other Than Honorable Conditions) in 2012 for smoking marijuana to self-treat PTSD following a combat deployment. SARPs (on base Substance Abuse Rehab Program) diagnosed me with Adjustment Disorder w/Depressed mood and Alcohol dependency, but I completed the program and fought the ADSEP by taking a board review. While the board recommended to retain me suspend the discharge recommendation with a conditional OTH in the event of further misconduct, my unit deployed before the board could convene and contrary to everything I had been told up until that moment, I received a 10-day letter with ~5 days left on it informing me that the reviewing authority upheld the boards characterization of service but rejected their retention recommendation. It demolished me and I have seemingly never recovered. Thankfully, my parents pushed me to file a claim through the American Legion in XXXXXX when I initially got home, but I moved all around in the interim, was told it was a fat chance in hell to overturn drug pop discharges (2012) and that I was by default ineligible by my command/others. Unable to stay at home because of my PTSD, I moved out of state and never received any further correspondence from the VA which led to missing C&P exams. The initial compensation claim was filed on X-XX-2012 and I was granted service connection for treatment purposes only for Adjustment Disorder w/Depressed Mood, which I did NOT claim. I did claim PTSD, left knee, right knee, back problems- all of which were denied service connection. Under REASONS FOR DECISION for Service Connection for PTSD, my decision letter states that they conceded my stressor (Combat Action Ribbon), but that my service records do not contain complaints, treatment, or diagnosis for that condition, and I did not attend my VA examination- as well as “Therefore, medical evidence that could have been useful to support your claim was not available to us.” In addition to my SARPs diagnosis of Adj Disorder w/depressed mood (an ACUTE disorder), there are records of me being seen at the Naval hospital on Lejeune for night sweats, a PTSD symptom, but I am unsure if that was included in the original compensation decision evidence. Fast forward to a few months ago and I discover I can be seen for free at a Vet Center, where treatment leads me to eventually contacting a VSO with the XXXXXXX. The VSO found a few files in my record that I have never seen in my life. After days of making calls to the VBA and VHA, I go from being emphatically told by the VBA eligibility department I am ineligible due to my Discharge Characterization- to registered with free VA healthcare on the same phone call earlier this month. Fast forward to last week, I receive a letter from VHA Member Services informing me that they have determined I am ineligible to enroll in VA healthcare due to the VBA determination letter I’ve copied/pasted below. THIS DIRECTLY CONFLICTS WITH THE 2013 VBA DETERMINATION LETTER CITED AS EVIDENCE. I made a million calls to the VA, and eventually get a call back and am told yesterday that my Characterization of Service Review claim was pulled by the VA XXXXXXX Regional Office and that there appear to be a few issues with my claims. The VA received more records from the service branch in 2014, a year after my original claims were Closed, but the claims were never reopened/examined, and nothing was done. The records were service records and medical records mixed together. The wording of the 2012 VBA decision letter (made by a different Regional Office than I currently reside in) are “conflicting” and confusing the VA Reviewers, which was the reason given to me why the XXXXXX office “has” my characterization of service claim. Today, I received a letter from the DVA Evidence Intake Center informing me that I have 60 days to provide evidence that helps with their decision concerning my eligibility for VA benefits. I do not even know where to begin. I have been in a pretty bad spot mentally, physically, and spiritually essentially since deployment, so to discover that I could have been getting help all this time is both infuriating and crushing. The VA Reviewer I spoke to at XXXXXXX said they would mail me a copy of the files the VA received from DoD in 2014 and that I need to go through everything with a fine-tooth comb and possibly consider getting representation. (I just got these yesterday, they seem to be similar to records I have from e-benefits and some that I kept from time in the service, but I cannot confirm 100% as they will not disclose to me what the newly discovered medical records pertain to) See the 2013 Character of discharge determinations copy/pasted below, I’ve XX’d out dates but can provide them as well as scanned copies of what I’ve received along with my original ADSEP package that I got a copy of before being discharged (potential conflict from my commands processing, they crossed through a required field on my ADSEP checklist for a CO’s letter of referral to the VA and wrote NA- told me I was SOL in no uncertain terms). ------------------------------------------------------------------------------------------------------------------------------------------------------------------ Updates- "While the board recommended to retain me with a conditional OTH in the event of further misconduct, my unit deployed before the board could convene and contrary to everything I had been told up until that moment, I received a 10-day letter with ~5 days left on it informing me that the reviewing authority upheld the boards characterization of service but rejected their retention recommendation." I called the Administrative Law section at the LSSS-E (covers Camp Lejeune, where I was ADSEP'd) today and learned that my OTH was actually Suspended, which is different than a recommendation to retain. DID find supporting documents in my "milconnectrecordpull" that were also present in the newly discovered records that the VA did not previously consider (they received them in 2014, a year after my original claims were CLOSED) These included my ADSEP package and board findings, INCLUDING a Minority Report filed by a board member in support of a higher characterization of service on the grounds that it was an isolated incident- THIS WAS NOT considered in my original claims, but I was still previously granted Honorable for VA purposes (in 2013) ALSO included the order from the CO of my Units Remain Behind Element recommending that I be retained in response to the boards finding to suspend my discharge, a recommendation that was IGNORED- resulting in my discharge with an OTH. ------------------------------------------------------------------------------------------------------------------------------------------- The linked album contains a redacted copy of the 2013 rating decision on my 2012 claim that was closed. ------------------------------------------------------------------------------------------------------------------------------------------- Character of Discharge letters from 2012 CoD ISSUE: Character of discharge. ADMINISTRATIVE DECISION EVIDENCE: DD Form 214 Facts and Circumstances from the Service Department DECISION: The claimant's service from XXXXXX to XXXXXX was under other than honorable conditions. The claimant is entitled to receive VA benefits based upon this period of service. The claimant is eligible for health care and, related benefits authorized under Chapter 17 of Title 38, United States Code, for any disability or disabilities incurred or aggravated in line of duty during active service. REASONS AND BASES: 38'USC §101(2); 38 CFR 3.12(a) 38 CFR 3.12(d) 38 CFR 3.360 The claimant entered active duty in the U.S. XXXXXXX. The Facts and circumstances furnished by the service department show that after the Veteran returned from his tour station in Afghanistan, the claimant tested positive for TCH 35 (marijuana) and subsequently charged with misconduct due illegal drug use. It also states that despite the Veteran's good conduct (awarded Good Conduct medal in XXXX), favorable character appraisal by his command, involvement in highly dangerous combat activities such as Mojave Viper and lack of evidence showing pattern of misconduct the board decided to appoint the claimant an other than honorable discharge: This appears to have been an isolated incident. The Facts and Circumstances state that the Veteran was made the poor choice of turning to an illegal drug and alcohol to cope with his mental health issues derived after his tour in Afghanistan. Prior to this incident the claimant had not used any illegal substance or had any pattern of behavioral health issues. Furthermore, there is no pattern of misconduct that can be established With out restoring to mere speculation. With several mental health studies being done that have linked alcoholism & drug use as a coping mechanism to deal with untreated mental health issues such as anxiety, adjustment disorder & PTSD the claimant's testimony is considered probable. In view of the evidence of record it is determined that this offense does not constitute willful and persistent misconduct. (Signed as Concurred and Approved on 8/21/2013) ------------------------------------------------------------------------------------------------------------------------------------------------------------------ As well as this letter Dear XXXXXX, We made a decision regarding your discharge from military service. Every effort was made to see that your claim received complete consideration. This letter tells you what we decided, how we reached our decision and what evidence we used to reach our decision. We have also included information on what you can do if you don't agree with our decision, and who to contact if you have questions or need assistance. What We Decided We decided that your military service for the period XXXXX through XXXXX is honorable for VA purposes. You and your dependents are eligible for any VA benefits for this period of military service. How Did We Make Our Decision? The evidence shows that your service from XXXXX to XXXX was under other than honorable conditions. You are entitled to receive VA benefits based upon this period of service. You are eligible for health care and related benefits authorized under Chapter 17 of Title 38, United States Code, for any disability or disabilities incurred or aggravated in line of duty during active service. Evidence Used to Decide Your Claim In making our decision, we used the following evidence: DD Form 214 Facts and Circumstances from the Service Department
  23. So I am getting juggled a bit between VSO since my awesome last one retired so would appreciate the proper route to take. I was just rated at at 50% Pes Planus with Plantar Fasciitis under 5276. This was a supplemental claim for only pes planus that was filed on 02/01/21 with a decision made on 03/12/21. After speaking with a VSO, who read me the decision letter and raters notes, he said there is no doubt the 50% for pronounced pes planus was justified, but was not sure why they arbitrarily added plantar fasciitis to the decision. I mentioned to the VSO that effective 02/04/21, a diagnostic code of 5269 - Plantar Fasciitis was added to the schedule of ratings - musculoskeletal system and if it was possible that they combined them under diagnostic code 5676, because that was how it was always done before and the rater did not read or know about the new diagnostic code. He said that could be the reason. Just to note, I was diagnosed at the VA with bilateral pes planus in 2017 and given insoles. I was again seen by the VA for foot pain and bilateral pes planus was again affirmed in 2018 with a different set of insoles. This last January I again went in with foot pain where pes planus was again affirmed, had another set of insoles cast, and was diagnosed for the first time with bilateral plantar fasciitis and given steroid injections in each foot. Ultimately I am looking to get the plantar fasciitis rated separately from the pes planus under the new diagnostic code of 5269, which due to the severity and being bilateral would be at 30%. In fact, my VSO had already submitted an intent to file for bilateral plantar fasciitis, arthritis of both great toes, patellar tendinosis of both knees, arthritis of both knees, and ITB syndrome as being secondary to the pes planus once it was service-connected. The history of my pes planus dates back to my final physical and I have been receiving treatment for it since 2017 in the form of insoles when it was originally diagnosed with the VA. It was only this last year that I was diagnosed with plantar fasciitis as a result of the pes planus. So what route do I take on this supplemental claim? I feel like a High level Review won't allow me to submit the VA medical records showing that I have been treated unsuccessfully for pes planus since 2017. Is that something I can bring up in the phone conversation with the reviewer to get the plantar fasciitis rated separately under 5269? I am not submitting any new evidence so to speak, but literally VA medical records that were already in the system for years. The other question is, does the new diagnostic rating for plantar fasciitis even apply to me? I filed on 02/01/21 and the new rating schedule went into effect on 02/04/21. I want to fight this decision because I am already rated at 70% with CAD, DMII, and Tinnitus. Getting the plantar fasciitis rated separately would be the difference between an 86% rating rounding up to 90% and 92% rounding down to 90%. This does not include the issues secondary to the pes planus like the arthritis and tendinosis that are under my current intent to file.
  24. CUE =BVA - retro to 1985 for PTSD There are over 2,000 CUE decisions at the BVA for 2020. Many of them were denied and those cases reveal why they were denied. But persistence pays off: This vet would not give up- the case shows the rigamorale he went through. "ORDER The Veteran’s motion to revise the March 2007 rating decision that granted service connection for posttraumatic stress disorder (PTSD), effective October 7, 2005, on the grounds of clear and unmistakable error (CUE) is granted, and an effective date of April 9, 1985, but no earlier, for the award of service connection for PTSD, is assigned. " https://www.va.gov/vetapp20/files10/20067868.txt This case involved not only CUE but 38 CFR 3.156. Also the veteran appealed to the Court ( CAVC twice and apparently had a lawyer at that point who successfully represented him at the BVA for the CUE. The veteran at some point reopened his claim in 2005 and gained a 70% rating in 2007 (retro back to 2005) The BVA stated: "Here, there is no question that the award of service connection in 2007 was based, at least in part, on the confirmation of the Veteran’s stressors completed through CURR research. So, it is clear in this case that the effective date provisions of 3.156(c)(3) were applicable. " This vet Also had problems getting his stressors verified- problems that probably came from the VA itself-that is why it pays to do all you can to get a stressor verified via JSRRC and/or buddy statements. VA will lie about contacting CURR, when sometimes they never do that. It took 22 YEARS for that to occur in this veteran's case. Still the veteran knew that was wrong- and he proved with his lawyer that hi original 1985 claim for "delayed stress" ( PTSD was still new then and many vets with a PTSD diagnosis I met when I worked at a Vet Center, didnt really know what PTSD was, but they all had been diagnosed with it -from the Vietnam War.) My husband's 1983 award was for service connected "nervous condition"" subsequently changed to PTSD, when PTSD formally went into the regulations. In this case the original claim for "delayed stress" was clearly an established fact that the veteran had PTSD fro the Vietnam War. In many cases ( such as a recent CUE question here) a re opened claim can only generate a potential valid CUE on the original claim, only when there is no doubt that the original claimed disability was exactly the same as the re opened awarded disability. The only good thing VA ever did for my husband was diagnose him with PTSD immediately when he tried to choke a loan officer at the VA. The Director,a VA psychologist, as I mentioned before, gave him a buddy statement, because my husband revealed one stressor to him and the psychologist- was called to the same scene at the Perfume River, Vietnam to treat Marines who were obviously seriously affected by the "volunteer job" they had to do.It was horrible. He was awarded within a few months after that for SC PTSD. 30% SC. Even with treatment for years for the PTSD here in NY, he was awarded 100% P & T posthumously for SC PTSD because PTSD can get worse over the years. Severe stressors never go away. I hope this case above will help someone out there who thinks they have CUE and/or 3.156 potential. Any vet rep or VSO who can read, would be able to understand what a valid CUE is by reading this case, and be able to determine if you should file or re open in that regard. My last post on CUE here yesterday will also help any POA rep ,VSO , or claimant understand what a CUE is and how a re -open can gain a better EED, as explained in that post and in this very recent BVA award.
  25. I've been awarded 100% via TDIU (70% bipolar & 30% asthma) and I seek back pay to 1997 when I submitted my first claim for bipolar disorder. In my C file the C&P examiner states he found and lists symptoms of my mental disorder in a 1983 inpatient report of when I was hospitalized for two weeks in a psychiatric ward. Is that sufficient for a CUE claim for the start date of my disability pay?
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