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Filing Nod For Retro Benefits On Ptsd


Ruffcreek
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Question

I was recently awarded 100% for PTSD (HAPPY).

I was paid retro to 2/27/08, the date I submitted the claim for an increase from 50%. My original claim in which I was awarded 50% was submitted July 2006.

38 CFR 4.7 says "where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned."

Dosen't this give me grounds for filing a NOD requesting the higher evaluation of 100% back to July 2006?

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  • HadIt.com Elder
I was recently awarded 100% for PTSD (HAPPY).

I was paid retro to 2/27/08, the date I submitted the claim for an increase from 50%. My original claim in which I was awarded 50% was submitted July 2006.

38 CFR 4.7 says "where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned."

Dosen't this give me grounds for filing a NOD requesting the higher evaluation of 100% back to July 2006?

If you failed to NOD the original decision, within one year of your award notification date, it's a moot issue. You should have appealed that decision, not requested an increase, later. The only way I can see you having a chance is that you can try a CUE, based on the two C&P exam reports, quoting the rule you posted. Don't know that you'd win, but ya never know w/the VA. jmo

pr

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  • HadIt.com Elder

Right, if your original decision became final the only way to get an EED is to file a CUE. I don't think there is any downside to filing a CUE. That would be a question for the members here to discuss.

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  • HadIt.com Elder

File the CUE. The worst thing they can do is say no. To which you reply with a NOD.

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Ruff the way i read it,you submitted a claim for a increase 2/27/08,if so, thats the reason VA retro you back to that date,and your higher evaluation is 100%.Like Phillp said,if you did't do a NOD with than the one year period, it becomes a moot issue.If you decide to do a cue for the EED,remember it have to be base on the evidence that was in front of the rater when you was awarded 50% ptsd,in other words, there was enough evidence in front of the rater, at the time you was awarded 50% to be awarded 100% without submitting any new evidence.

mobie

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Was the July 2006 claim final? I dont see how it could be-unless you did not NOD it in a year.One year after the denial letter-

Does the recent 100% decision refer back to the 50% decision?

Can you shape your NOD to call their attention to any evidence you submitted for 2006 decision that they disregraded -but it would have led to a better EED?

Do you get SSA for exactly the same SC disability?

If so did they consider that award in the narrative of the decision?

If not- best to apply ASAP for SSA and use the VA 100% award to support the SSA claim.

If the appeal period ran out on the initial claim, then you could file a CUE claim on it. CUE is only for legal errors-

did they give you the wrong diagnostic code in the 50% decision? Based on the evidence?

Is so that would be a CUE.

Also if an SSA award for same claimed disability preceeds a VA 100% award- the VA often uses one more year added to the date of filing the TDIU claim as the "date entitlement arose" -but they had to have knowledge of the SSA award.

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Thanks for everyone's help.

Berta. Her are answers to your questions.

I failed to NOD the 2006 claim within a year so I've lost this option. Also I would not be able to present any evidence submitted in 2006 that they disregarded.

The 100% decision does not refer to the 50% decision.

I may consider filing a CUE.

Note: The reason I received 100% and not P & T is the C & P examiner made the statement that "he is still early in treatment so is not possible at this time to make a realistic assessment in our treatment might diminish the present high level of PTSD symptoms." (I had been receiving treatment at the VA for only 2 months at the time of the C & P exam)

My plans are to get a letter from the director of the PTSD clinic and have her write a letter stating that my disability is permanent and total. (if possible) Any other strategy on this or what I should or shouldn't do please let me know as I'm kind of in the clouds on this.

I will be applying for SSDI today.

Ruffcreek

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