ptsd Cue Ltr Final Opinions

ruby · May 22, 2009

This is the final I will hand carry on Tues unless others see a need for me to improve it.

MOTION FOR RECONSIDERATION BASED ON CLEAR AND UNMISTAKABLE ERROR: STATEMENT IN SUPPORT OF CLAIM

1. In reference to your correspondence dated May 1, 2009 on page 3 paragraph 4, you stated "Your rating decision and this letter constitute our decision based on your claim received on February 21, 2008. It represents all claims we understood to be specifically made, implied, or inferred in that claim."

This statement is incorrect, while I may have not been specific in my request on that date, it was implied/inferred that the following actions would occur.

While the aforementioned paragraph is not stated for the August 2008 claim for PTSD due to personal trauma in this decision, I am sure this was an over sight on the VARO’s decision letter.

TDIU was not inferred by the VARO as required by 38 C.F.R. § 4.16. Total disability ratings for compensation based on unemployability of the individual.

In addition I am providing a BVA decision regarding this issue and their decision along with snipet’s of thier decision:

Citation Nr: 0909205 Decision Date: 03/12/09 Archive Date: 03/26/09 DOCKET NO. 06-19 075

"the RO's failure to address the implied claim is properly challenged through a clear and unmistakable error (CUE) motion"

"Additionally, as indicated previously, at the time VA received the Veteran's March 2, 2004, claim, he met the schedular threshold requirements for a TDIU rating under 38 C.F.R. § 4.16(a). Specifically, his PTSD was rated as 50 percent disabling and he had a combined disability rating of 70 percent".

"Specifically, as indicated previously, the Veteran's VA psychiatrist indicated in a document dated March 1, 2004, that, at the current time, the Veteran's mental health rendered him incapable of working."

"supports the fact that the Veteran's service-connected disabilities, specifically his PTSD, rendered him unemployable as of that date."

In addition I have provided you with a portion of a 2001 Memorandum by the General Counsel (022) for you to review regarding this issue (full copy enclosed)

In Department of Memorandum

Veterans Affairs

Date: July 6, 2001 VAOPGCPREC___12-2001

From: General Counsel (022)

Sub: Robinerson v. Principi, No. 00-7009, 2001 U.S. App. LEXIS 11008 (Fed. Cir. May 29, 2001)

HELD:

The only holdings in Roberson v. Principi, No. 00-7009, 2001 U.S. App. LEXIS 11008 (Fed. Cir. May 29, 2001) are the following:

1. Once a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to total disability based upon individual unemployability (TDIU).

2. A veteran is not required to submit proof that he or she is 100% unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3. 340(a).

Tim S. McClain

The following evidence was submitted to support this inferred claim and is in your possession. Letters/Medical notes by Dr. Hummer Ph.D and Dr. Shriner MD . They stated I am permanently disabled by symptoms of PTSD and my prognosis is poor. These statements should have triggered TDIU. In my claim I asked for 100% rating based on these statements.

I am requesting that the VARO, CUE this issue and TDIU, P&T be granted. I am including VA Form 21-8940.

In accordance with 38 C.F.R. s4.3 the resolution of reasonable doubt should be applied. While I am on social security disability for a non service connected condition ( on appeal), if I did not have this condition, my PTSD symptoms and my service connected physical disabilities i.e. cervical arthritis (secondary bilateral radiculopathy claim pending), asthma, arthritis left hand and foot would prevent me from obtaining substantial gainful employment.

2. The VARO would change the dx code of 7819 to a more appropriate analogous diagnosis code dx code of 7806 and an appropriate rating be assigned with an effective date of December 2007(date the cyst were dx). In addition to the implied/inferred claim, I followed this up with correspondence that was received by by S. Clement at the St. Pete Regional Office on May 2, 2008.

§ 4.20 Analogous ratings.

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.

§ 4.27 Use of diagnostic code numbers.

The diagnostic code numbers appearing opposite the listed ratable disabilities are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis in the Department of Veterans Affairs, and as will be observed, extend from 5000 to a possible 9999. Great care will be exercised in the selection of the applicable code number and in its citation on the rating sheet. No other numbers than these listed or hereafter furnished are to be employed for rating purposes, with an exception as described in this section, as to unlisted conditions. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. This procedure will facilitate a close check of new and unlisted conditions, rated by analogy. In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined.

With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen.

§ 4.7 Higher of two evaluations.

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.

Hidradenitis Suppurative is a disease of the apocrine glands that produces infected cyst which leads to scarring. This condition should be rated as a hyphenated dx code; it is both a disease process dx code 7806 and residual condition of scarring- dx code 7819. In accordance with 38 U.S.C.S. statute 5107 (a).

Additionally, I have included BVA decisions that support this change in diagnosis.

Citation Nr: 0639017 Decision Date: 12/14/06 Archive Date: 01/04/07 DOCKET NO. 98-03 459

Citation Nr: 0705665 Decision Date: 02/28/07 Archive Date: 03/05/07 DOCKET NO. 04-24 826

Citation Nr: 0840504 Decision Date: 11/24/08 Archive Date: 12/03/08 DOCKET NO. 06-22 355

Citation Nr: 0805540 Decision Date: 02/15/08 Archive Date: 02/26/08 DOCKET NO. 03-17 092

I am currently prescribed by the Dermatologist near constant antibiotic therapy since December 2007. I currently take Doxycycline 50 mg bid, benzoyl peroxide solution qd, tretinoin 0.1% q pm and sun screen while taking the doxycycline. I have frequent yeast infections, constipation and stomach distress while taking the doxycycline.

The doxycline was first prescribed by Dr Vasey MD, Chief of Rheumatology, at James A. Haley VA, in Tampa, Florida in December 2007 for the diagnosis of Hidradenitis Suppurative. He then referred me to Surgery which referred me to Dermatology for medical management of this condition that is now service connected.

Berta · May 23, 2009

I feel you made your point-

But only BVA gets Motions- this is a Request For Reconsideration due to a CUE -

this is on a Regional office decision right?

You used the regs themselves for CUE- Roberson- (one typo there) is a good point as well to make-

and the fact that you are sending them the TDIU form yourself will help here-(no sense waiting for them to do it)-

as an inferred issue.

Did you attack separate page under # 25 and tell them all of the side affects of the SC meds? Any good med print outs from the web as to their side affects will help prove they impact on your ability to be employed.

I mentioned Motion part because I thought this was a RO decision-

Reconsiderations of BVA decisions require a formal legal type Motion-

for Reconsideration-

it is just the preferred legal format for the first page-

Claimants Name

V. Docket #

Veterans Administration

MOTION FOR RECONSIDERATION OF BVA DECISION DATED ( )

etihwr · May 23, 2009

Nice try and I hope you get IU. There isn't anything called TDIU. Only people who have never worked (either doing claims or adjudicating claims) in the system call it TDIU. Why didn't you file a 21-8920 for IU? Do you meed the criteria for IU? Do you have a single issue of 60% for a combined rating of 70% with a single issue of 40%. If not, you don't qualify for IU.

All the cites of BVA decision are only used as a reference. The Court of Veteran Appeals (as well as US District Court and Supreme Court)decisions are the only binding decisions. Again, only someone used to working with the system would know this.

The Supreme Court ruled a couple of years ago when it came to CUE claims. You have to show the damage the decision caused. You can't infer. You must be detailed.

As for the DVA taking an inferred claim, all they had to do was send you an application (21-8920) and they met their legal oblications.

As for the professional opinions of your doctors, unless they are willing to put their opinions in writting, they are not worth much. If you have PTSD, and their belief is that you so screwed up from the PTSD, then why not try and get 100% for PTSD instead of IU? Your story indicates you can't work due to PTSD! Your medical documentation supposedly supports you unable to work due to your PTSD, so why not go for 100% due to PTSD? Not IU!!! You should have tried both.

Last but not least, by inputing a 21-8920 with your appeal, you screwed up. The application for unemployability is a new claim and isn't part of the appeal. The only reason you did that is to get back pay. Your blaming others for not reading between the lines, yet you didn't see it either until later.

If you missed the inferred claim, how can you expect the DVA which has less time to read all your evidence to pull it out. The adjudicators have 30-45 minutes to research and adjudicate a claim. If you gave the a boat load of information and didn't highlight that information, how do you expect them to catch a infrence when you couldn't and you had unlimited time to read your own material?

john999 · May 23, 2009

The DVA has a duty to infer IU if the veteran's records indicate he/she cannot work due solely to SC condition. The VA has a duty to consider all the evidence in a claim before making a decision. Just because the VA is underfunded does not relieve them of their duty to fully adjudicate all the evidence in a vet's claim. Blaming the vet for the failure of the VA to do their job is a strange way of thinking unless you work for the VA.

ruby · May 23, 2009

Nice try and I hope you get IU. There isn't anything called TDIU. Only people who have never worked (either doing claims or adjudicating claims) in the system call it TDIU. Why didn't you file a 21-8920 for IU? Do you meed the criteria for IU? Do you have a single issue of 60% for a combined rating of 70% with a single issue of 40%. If not, you don't qualify for IU.

All the cites of BVA decision are only used as a reference. The Court of Veteran Appeals (as well as US District Court and Supreme Court)decisions are the only binding decisions. Again, only someone used to working with the system would know this.

The Supreme Court ruled a couple of years ago when it came to CUE claims. You have to show the damage the decision caused. You can't infer. You must be detailed.

As for the DVA taking an inferred claim, all they had to do was send you an application (21-8920) and they met their legal oblications.

As for the professional opinions of your doctors, unless they are willing to put their opinions in writting, they are not worth much. If you have PTSD, and their belief is that you so screwed up from the PTSD, then why not try and get 100% for PTSD instead of IU? Your story indicates you can't work due to PTSD! Your medical documentation supposedly supports you unable to work due to your PTSD, so why not go for 100% due to PTSD? Not IU!!! You should have tried both.

Last but not least, by inputing a 21-8920 with your appeal, you screwed up. The application for unemployability is a new claim and isn't part of the appeal. The only reason you did that is to get back pay. Your blaming others for not reading between the lines, yet you didn't see it either until later.

If you missed the inferred claim, how can you expect the DVA which has less time to read all your evidence to pull it out. The adjudicators have 30-45 minutes to research and adjudicate a claim. If you gave the a boat load of information and didn't highlight that information, how do you expect them to catch a infrence when you couldn't and you had unlimited time to read your own material?

TDIU=Total disability ratings based on individual unemployability 38 CFR 4.16

I wasn't going to be nice as it is apparent you work for the VA or a significant other does.

You need to read the opinion by the general counsel (which is binding)

Date: July 6, 2001 VAOPGCPREC___12-2001

From: General Counsel (022)

Sub: Robinerson v. Principi, No. 00-7009, 2001 U.S. App. LEXIS 11008 (Fed. Cir. May 29, 2001)

He misspelled the name it is Roberson in his opinion.

This might help you understand your job better. Look at the entire case.

As for the professional opinions of your doctors, unless they are willing to put their opinions in writting, they are not worth much. If you have PTSD, and their belief is that you so screwed up from the PTSD, then why not try and get 100% for PTSD instead of IU? Your story indicates you can't work due to PTSD! Your medical documentation supposedly supports you unable to work due to your PTSD, so why not go for 100% due to PTSD? Not IU!!! You should have tried both.

I had 3 letters to support my claim including thier own C&P examiner--which they ignored.

I do not qualify for 100% for PTSD, 38 CFR , Chapter 4, however, I do qualify for 70%. In my claim I asked for 100% based on the statements from my doctors which was an inferred claim for IU.

My reasons for not working are both medical and physical, while I am on SSDI for a non service connected condition (on appeal) they are duty bound to look at the high percentage rate 80% and determine if my sc issues would keep me from maintaining a job. Again read Roberson.

Once any medical professional states that the Vet is not able to maintain employment due to SC condition then it is an inferred claim for IU read Roberson.

Last but not least, by inputing a 21-8920 with your appeal, you screwed up. The application for unemployability is a new claim and isn't part of the appeal. The only reason you did that is to get back pay. Your blaming others for not reading between the lines, yet you didn't see it either until later.

Again, your wrong, you can not be paid for IU until 21-8920 is completed, however they can award the IU. I currently have IU on appeal from another claim, however, that is not an issue at any time IU can be awarded when you meet the requirements.

I have to know the rules, regs and laws that pertain to my claims, while the rater picks and choses which ones if any they want to use then I have to file an appeal and wait 2-10 years to get it approved when it should have occurred at the RO level if they knew and applied the rules correctly.

john999 · May 23, 2009

Ruby

I might consider getting a lawyer to pursue anything involving a CUE claim. There are so many pitfalls. I would start to prepare myself for a trip to the BVA, and possibly beyond. This is why I say to get a lawyer because at some point you do not want any errors made due to being a non-expert in VA law to make it easy for the VA to throw out your claim on some technical problem. My experience with the ST. Pete VARO is that they will just kick your CUE claim to the BVA regardless of the merits. If it involves lots of retro you can count on it. They lack the guts to make hard and expensive decisions. Usually, I think a vet should try and get their 100% or IU and then go after the CUE claims since these things can drag on for years.

etihwr · May 24, 2009

Just because I wrote a desenting opinion doesn't mean I work for the BVA. I did work for them in 2000. I did do case development. Nice try to pass the blame but just because you don't like the answer, doesn't mean you great imagination is based in reality. I used to do claims for the State of Virginia for three years. I had a very good record of getting people high ratings because I educated them on what they needed and how they were supposed to take their exams. I told them how I got my 100% and I did that prior to doing claims for Virginia.

I know all about General Counsel rulings. They are what the DVA is supposed to follow but if a higher court overrules, then you follow the higher court (as previous stated - what level you can cite). The opinions of 1000 doctors don't count for much if they don't follow the basic rules for a NEXUS letter. I can give my opinon on anything, but unless I follow the law, it is a waste of time.

The basic things for a NEXUS letter are as follows:

Doctor reviews SMR.

Doctor performs tests on Vet,

Doctor draws conclusion based on the first two and referres to studies or medical books for proof. I can send to this forum what is needed in greater detail if someone wants it. Opinions w/o supporting facts and documentation is a waste of time.

quote name='ruby' date='May 23 2009, 12:23 PM' post='146477']

\TDIU=Total disability ratings based on individual unemployability 38 CFR 4.16