ptsd Special Claims Handling Procedures For Missing Documents? (berta?)

[Cruinthe]

My award date for PTSD was July 2002, but I applied for PTSD back in 2001. The VA lost my application but I have a copy of the original 4138 filed by the DAV. Plus a letter from the DAV county office verifying they sent it to the VA.

Since I missed the Special Claims Handling Procedures for Missing Documents deadline, should I file for reconsideration?

Also, I filed for Chronic Fatigue Syndrome back in 1993. I found the original 4138 while digging through my paperwork. I got service-connection for Chronic Fatigue Syndrome in 2004. But the VA never gave me a C&P exam for CFS back in the 90's. I guess the disease wasnt really on the radar yet. I am currently 60% for CFS and I would like to file for Clear and Unmistakable Error for CFS and have the 60% granted back to 1993.

If anyone has any suggestions on how to proceed, I would appreciate it.

Again, I have the original 4138 for CFS in 1993, and the PTSD 4138 from 2001.

Thanks in advance

[Philip Rogers]

If you filed in 1993 and it was never adjudicated, that claim remains open, so it probably won't reach the CUE level, as that claim is still open. I'd request, since the CFS was subquently awarded in 2004, that the 2004 award be awarded back to 1993.

On the 2001 PTSD application, I'd file for an EED on the 7/02 award based on a grave procedural error and enclose photocopies of the original application and the DAV letter. jmo

pr

My award date for PTSD was July 2002, but I applied for PTSD back in 2001. The VA lost my application but I have a copy of the original 4138 filed by the DAV. Plus a letter from the DAV county office verifying they sent it to the VA.

Since I missed the Special Claims Handling Procedures for Missing Documents deadline, should I file for reconsideration?

Also, I filed for Chronic Fatigue Syndrome back in 1993. I found the original 4138 while digging through my paperwork. I got service-connection for Chronic Fatigue Syndrome in 2004. But the VA never gave me a C&P exam for CFS back in the 90's. I guess the disease wasnt really on the radar yet. I am currently 60% for CFS and I would like to file for Clear and Unmistakable Error for CFS and have the 60% granted back to 1993.

If anyone has any suggestions on how to proceed, I would appreciate it.

Again, I have the original 4138 for CFS in 1993, and the PTSD 4138 from 2001.

Thanks in advance

[free_spirit_etc]

I think the deadline for Special Claims Handling Procedures For Missing Documents only applied to a specific period involving the shredding incidents. In that, they have kind of relaxed the standards a bit for proving what you sent during that time period.

Since what you sent was before that period, the Special Claims Handling Procedures For Missing Documents wouldn't necessarily apply.

BUT you can always ask for an earlier effective date with evidence that your claim was submitted at an earlier time. I don't think there is an actual deadline for that.

I do, in some ways, like how the VA handles effective dates of claims. I would say that is one way the VA works better than SSA. With SSA, if the ALJ makes a partially favorable decision - and grants the claim at a later date than you applied / requested - you can appeal that decision - but sometimes that can tie up the entire claim (i.e. you might not get paid anything until the appeal is processed) AND the Appeals Council can set the whole decision aside (meaning the whole claim is decided again) so if you appeal the date, you run the risk of another decision being made that you are not disabled.

With the VA, from what I understand, once you are found disabled they don't take that away from you (or make you wait forever to get paid) if you appeal the date. From what I understand, if you appeal the effective date, the date is the only issue on the table. Your disability had already been decided.

[broncovet]

I think that deadline is bogus and will never be upheld by the courts. I think it is, however, a clever way the VA manipulates the system to make Veterans THINK they passed the deadline, so they dont appeal. Here is why.

The VA did something illegal..they shredded claims. It was just as illegal on Nov. 18, 2009 as it was in 2002.

There is no regulation that made it legal for the VA to shred Veterans claims for any period of time.

The only thing that might be an issue is do you qualify for "Special Handling" of your claim? That is if you had shredded documents dated during this special handling period that ended Nov. 17, 2009, the VA promises to give your case "special handling". What does "special handling" even mean? Does it mean your claim will go through faster? Does it mean it will be automatically approved? I would say the answer is no to both of those questions.

When Dr. Peake issued the fast letter, 08-41, he promised the "benefit of the doubt" for Veterans, accountability for VA staff. Veterans already have the "benefit of the doubt" written into the regulations!

I do think that if you made the deadline, you may have been entitled to a free "sucker punch" at the VA. Here is a hypothetical example: You told your doctor you were unemployed due to PTSD in 2002. The doc put it in your files. In 2003, you file a formal claim for TDIU, and it gets shredded. You may have a copy of it, you may not. If you have a copy, send it to them, and your effective date should be 2002, the date of your informal claim.

If you dont have a copy, "special handling" procedures may allow you to try to recreate the form today, as if it were submitted in 2003. (That is the sucker punch..) It is probably meaningless and irrelevant because the medical record establishes an effective date, tho it is possible that a Veteran achieve a more favorable outcome due to "special handling" mostly because the VA want this bad publicity surrounding the "shredding incident" to go away.

The bottom line: Dr. Peak's Fast letter is meaningless lip service, and it is going to be "business as usual" at the VA...it is merely going to be harder for them to shred your critical evidence in the future, so the VA is just going to have to go back to their usual way of hiding your evidence in drawers, unused rooms, etc and just wait until you die before they throw it away. Go ahead and persue your claim as if you had not missed the deadline, and let the VA TRY to tell the BVA judge that you dont qualify because your shredded information was resubmitted after the expiration of special handling procedures (I would love to see them try that...they will get even more bad publicity out of that, and it will dig up skeletons in the closet that the VA wants to remain buried) ...then take it to the CAVC and you will win because there is no regulations supporting that VA position..a fast letter is NOT a regulation. Congress makes regulations, not the Secretary of the VA. The courts are required to implement and interpret congresses regulations, not VA fast letters.

Edited January 3, 2010 by broncovet

[Berta]

If the claim was denied and you didnt appeal it- a CUE claim would be better as long as the PTSD claim is closed.

I guess a CUE claim would be in order for the CFS too- however it is the medical evidence that they had at time of their past decision in 1993 that would determine if a rating was warranted or should have been higher for the CFS as well as the PTSD.

There is a wealth of info here in the CUE forum on this type of claim.

Only a past,denied and final VA or BVA decision can be cued.

BVA decisions being cued require a Motion filed claiming CUE at the BVA.

VARO decision CUE claims must be filed with the RO that made the alleged CUE.

Only legal evidence can be used to support a CUE claim. The medical evidence has to have been established with the VA at time of alleged CUE.If that established medical evidence warranted an award or higher percent, then that means they probably committed CUE with the wrong diagnostic code as the proper diagnostic code would have warranted the higher rating.A scenario like that can make a CUE succeed.

There must have been a legal error that altered the outcome of the past decision (meaning a retro amount you never got due to their CUE)

The CUEd decision has to be identified by date or copy of it enclosed with the CUE.

The legal errors must be specific.

BTW CUEs are Not necessarily a one shot deal as some have suggested here.

There are plenty of CUEs at the BVA that were denied but the denial was stated as not being prejudicial to the veteran.

Some denied CUEs can be re-worded properly and then re-filed.Many CUEs are denied because the veteran did not raise the specific legal citations that the VA erred in when they applied the regs to the claim.

DTA regs dont count.

The BVA is a good source for CUE info as to why they denied and why in some cases they awarded.

Edited January 3, 2010 by Berta

[Cruinthe]

On the original 4138 from 1993, I put "hair loss, sore joints, difficulty concentrating, memory loss, chronic fatigue, shortness of breath".

Now, I did not put "chronic fatigue syndrome" just chronic fatigue, but I put some of the symptoms of chronic fatigue syndrome.

As far as I know, I was not given a C&P for chronic fatigue syndrome back in 1993. I have had 2 C&P exams for CFS in the last few years, so I know what they are.

I think the problem may lie in the fact that chronic fatigue syndrome simply not known back in 1993. But the 4138 I have here is stamped and from the Philly VARO.

On to the issue of PTSD. Its the classic VA shredding routine. I filed for PTSD with the local DAV guy in 2001. The local DAV guy gave me a copy of the 4138. The local DAV office also mailed me a letter saying "We gave your 4138 to the VA" (I have a copy of that letter too). But the VA never admitted they GOT the 4138, AND and I waited a year to check on the status of my claim with the VA. The VA said "We never got anything from you".

By the time I found out the VA "lost" my original 4138 it was after 911, the economy was in the trash, I lost my job, my car, and my apartment, and I was super pissed off at the VA for losing my 4138.

So my question is, should this be filed as a Request for Reconsideration? I am open to suggestions. Thanks in advance.

My award date for PTSD was July 2002, but I applied for PTSD back in 2001. The VA lost my application but I have a copy of the original 4138 filed by the DAV. Plus a letter from the DAV county office verifying they sent it to the VA.

Since I missed the Special Claims Handling Procedures for Missing Documents deadline, should I file for reconsideration?

Also, I filed for Chronic Fatigue Syndrome back in 1993. I found the original 4138 while digging through my paperwork. I got service-connection for Chronic Fatigue Syndrome in 2004. But the VA never gave me a C&P exam for CFS back in the 90's. I guess the disease wasnt really on the radar yet. I am currently 60% for CFS and I would like to file for Clear and Unmistakable Error for CFS and have the 60% granted back to 1993.

If anyone has any suggestions on how to proceed, I would appreciate it.

Again, I have the original 4138 for CFS in 1993, and the PTSD 4138 from 2001.

Thanks in advance

[Wings]

If the claim was denied and you didnt appeal it- a CUE claim would be better as long as the PTSD claim is closed.

I guess a CUE claim would be in order for the CFS too- however it is the medical evidence that they had at time of their past decision in 1993 that would determine if a rating was warranted or should have been higher for the CFS as well as the PTSD.

There is a wealth of info here in the CUE forum on this type of claim.

Only a past,denied and final VA or BVA decision can be cued.

BVA decisions being cued require a Motion filed claiming CUE at the BVA.

VARO decision CUE claims must be filed with the RO that made the alleged CUE.

Only legal evidence can be used to support a CUE claim. The medical evidence has to have been established with the VA at time of alleged CUE.If that established medical evidence warranted an award or higher percent, then that means they probably committed CUE with the wrong diagnostic code as the proper diagnostic code would have warranted the higher rating.A scenario like that can make a CUE succeed.

There must have been a legal error that altered the outcome of the past decision (meaning a retro amount you never got due to their CUE)

The CUEd decision has to be identified by date or copy of it enclosed with the CUE.

The legal errors must be specific.

BTW CUEs are Not necessarily a one shot deal as some have suggested here.

There are plenty of CUEs at the BVA that were denied but the denial was stated as not being prejudicial to the veteran.

Some denied CUEs can be re-worded properly and then re-filed.Many CUEs are denied because the veteran did not raise the specific legal citations that the VA erred in when they applied the regs to the claim.

DTA regs dont count.

The BVA is a good source for CUE info as to why they denied and why in some cases they awarded.

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x

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Berta, Very good CUE advice! BTW, What is "DTA regs"? Thanks. ~Wings