ptsd Can I Cue This?

[Shark]

I was awarded 50% for PTSD (was already 50% for AO stuff) total 80% and applied for TDIU and was denied. I just received a copy of my C file and noticed that my 50% on PTSD was set for a follow up on 7/2010 which is the date my Psychiatrist put on a form for California disability which asked for the earliest possible return to work date. So, the VARO had that form when they granted my 50% on PTSD, shouldn't they have also taken that same info to grant me TDIU until at least 07/2010? Is this something that I can CUE?

[Pete53]

Possibly but two things. Are you able to work and has a Doctor said that the Nervous Condition is the same.

[Berta]

My husband (100% P & T for PTSD) showed me his first award letter once-it is in a file here somewhere-

It said service connection had been established for a "nervous condition."

This was dated around the same year the VA decided PTSD was what they would start to call battle fatigue, and anxiety in combat vets. 1983.

You DEFINITELY might be able to successfully CUE this.

I would in a heartbeat.

If you fit into the same diagnosis for PTSD at that time-whether it was from combat or not- you might have gotten a rater who was born well after the war and didn't know the VA used terms like that before they recognized PTSD to award for conditions that were actually PTSD.

My husbands actual diagnosis at a VAMC was for PTSD from the doctor there who had been incountry psychiatrist during the war and they filed his claim the same day for him.-but the original award letter never said PTSD.It was dated in 1983 or 1984 for 30 % comp.

[Berta]

"I have since been awarded 50% for PTSD for the same incident"

Beautiful- I think the CUE (legal error) would be since they didnt consider this as a disease or injury maybe they didnt even rate it or use any diagnostic code and that would be a CUE.

Do you have the complete decision? Do you have the rating sheet?

What year did you get this older denial decision?

[Berta]

Yep-CUE that baby-

http://www4.va.gov/vetapp96/files4/9634345.txt

Remand for higher rating of 30% for “nervous condition")

This vet's attorney raised the CUE issue in similar claim but we dont know the outcome:

http://www4.va.gov/vetapp99/files1/9902072.txt

This vet was awarded 100% for a “nervous condition" and was appeal ing the EED:

http://www4.va.gov/vetapp97/files3/9725656.txt

If the VA told you this was not a disease or injury-they mis -interpreted the regs which are clearly spelled out in these cases at the BVA.

Some of these claims were considered "not well grounded" by the VA years ago but afdter the VCAA they can no longer use that BS to deny.

You could use any BVA case above as evidence for the CUE claim and highlight the part they need to consider- BVA cases are not good evidence when it involves medical specifics.

But I have sure used them (I used a 2000 BVA decision I got recently as evidence for something else)

-when the BVA uses established VA case law and applies it properly and it shows that the VA in similiar legal aspect failed to do that regarding another claimant -the BVA's statements can be used as ecvidencxe of legal error.

These vets above did not have disease or injury due to service-they had nervous conditions that were ratable disabilities!

[Berta]

One more thought-

another CUE could lie in this fact- it is the applied policy of the VA to Rate ALL disabilities that they are aware that the veteran has.

I regret I cant find yet the exact page I used from M21-1 to support my CUE claim on this.

This policy has been standing since 1945 when they developed the Rating Schedule and might be at hadit in 38 USC under the Adjudication regs in that topic here in the Schedule of Ratings forum.

In your case for CUE- it is similiar to mine in this aspect.

You had a disability (obviously since the VA has recognized this definition- 'nervous condition' as a bonafide disability as mentioned in my prior post,

thus the VA committed Clear and Unmistakable error in not rating the disability you have- which is established SOP in 38 USC and well as 38 CFR and M21-1.

Because they mis -read and mis applied the same regs that are in the BVA decisions I posted.

I assume since they didnt consider it as a disability they didnt rate it at all.A CUE.

When I find the exact page from M21-1 I used I will attach it.

In my CUE I stated that VA failed to rate ALL of my husband's 1151 disabilities ( which they should have done and I sent OGC pres Op on that too- as the proper ratings would have triggered a SMC award.The M21-1 thing was only one piece of my legal evidence. CUEs involve using VA case law and regs against the VA.

I also assume that the VA had enough info in your original claim to establish that you had a ratable disability at time of the denial.

The denial date might be critical to involve Bell V Derwinski if this was a BVA denial.

Also if you file a CUE and it was a denial from the BVA, yuou need to file a Motion under auspices of CUE with the BVA-not the RO- as the BVA committed the CUE.

I am so burned out with my issues that I cannot seem to find the specific M21-1 reg I used for my CUE claims that could help you too.

Will look some more-

Unfortunately my 2 cUe claims-supported by extensive legal evidence-have gotten a run a round by VA since 2004 as they refuse to read the legal evidence.That is SOP at Buffalo VARO.I keep getting SSOCs that again confound the issues and cite absolutely none of my legal evidence.

The unfortunate part is that my recent award rendered those CUE claims moot (although they are still pending because I explained that to VA and they probably dont understand what 'moot ' means.Now VA has to make the same SMC decision anyhow that they failed to do in 1998.

With the same retro -so I might never get a proper decision on these older CUE claims and that would have been helpful to others herewith CUE issues.Because the VA now has to decide the accrued SMC issue under the Nehmer court order.They must fi9nally give ratings for all of my husband's AO disabilities.They arent 1151 disabilities anymore.

The VARO will 'as likely as not' probably handle that issue wrong and I will ask them to CUE themselves again if they break more VA case law.

These CUE issues are complex and we have a wealth of info here at hadit about them.

It would be GREAT if you can find a vet rep who fully conprehends and supports your issue here for CUE.

Those BVA decisions will help any vet rep see the potential you have to possibly succeed with good sized retro depending on the proper rating of your PTSD when you first filed this claim.

As soon as I can find the M21-1 page I referred to-I will attach it here.

Edited January 14, 2010 by Berta

[Berta]

Another thought- ( I LOVE VA legalise and CUE issues)

http://www4.va.gov/vetapp06/files5/0636425.txt

This vet's CUE was awarded for retro from 1975 to 1992 (when he was finally SCed.) His original claim was based on 'nervous' disorder and ultimately granted for bi polar-with the CUE awarded by the BVA.

This case is lengthy but an excellent read as to application of the Bell decision which Might apply to you if you file CUE claim.

One thing that bothered me- I read dozens of nervous disorder claims-many of them CUEs -this AM- is that the BVA would deny by saying the original nervous condition claim was NOT on the same medical basis as any subsequent mental disability claim that the veteran won.

In one case a vet finally won a PTSD rating for sexual assault but could not prove CUE in past VA decision as they said a past denial was on nervous condition but was not related to the assault claim at all.I agree with their decision on that.The nexus was different for each claim.Some decisions I read - however I hope the vet appealed to the CAVC.

Other CUes there were denied due to lack of citing the actual regs at time of the alleged CUE (the date of the Cued decision)

that must be specific in order for VA to determine is CUE existed and some were denied because they raised medical issues or Duty to Assist issues that cannot form basis of CUE.

The medical evidence has to be established already before CUE can exist.

Prior to Bell it had to be or 'should' have been in the VA's possession regardless where that possession was.

I had evidence in VA's possession at the OGC which the VARO subsequently received for my CUE claims.

I am sure the RO had to have it when they rendered 2 decisions I cued but just in case I cited Bell in my CUE claims.

If VA had medical evidence and diagnosis of your nervous condition in the older decison -which you didnt appeal-

I am sure they commited CUE in that decision.

Edited January 14, 2010 by Berta