Ask Your VA Claims Questions | Read Current Posts
Read VA Disability Claims Articles
Search | View All Forums | Donate | Blogs | New Users | Rules
- 0
ptsd Cue Ltr Final Opinions
Rate this question
-
Similar Content
-
- 0 comments
- 1,030 views
-
- 0 replies
- 367 views
-
- 3 answers
- 344 views
-
- 0 comments
- 1,156 views
-
- 0 replies
- 382 views
-
Question
ruby
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.
Link to comment
Share on other sites
Top Posters For This Question
3
2
2
1
Popular Days
May 23
5
May 24
2
May 22
1
May 25
1
Top Posters For This Question
etihwr 3 posts
john999 2 posts
ruby 2 posts
Berta 1 post
Popular Days
May 23 2009
5 posts
May 24 2009
2 posts
May 22 2009
1 post
May 25 2009
1 post
8 answers to this question
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now