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

[Berta]

DTA Duty to assist- Wings- to include the VCAA regs.

Boy -wouldnt it be great if we could file CUE claims when they break Those regs! I bet 50% of us have had our DTA rights screwed up by the VA.

But that type of CUE claim is always denied.

[Mcafee]

I did file within time frame.Now in my Counslers hands to include SPOILIATION OF RECORD.

[broncovet]

Cruinthe

Altho I am not one of those "super searchers" of cases and regs, I think you should file a Cue based on the fact that the VA did not adjucate your claim for 'Chronic Fatigue" Syndrome back in 1993, as follows. Berta is right..don't Cue it on the basis of "Duty to Assist" (DTA) as that will be denied.

I think I can quote this almost word for word. Basically, the VA must consider all claims, and give a liberal interpretation to the Veterans filings. (They cant tell you that you had to use the words, "Chronic Fatigue SYNDROME" because "Chronic Fatigue" is sufficient.) If the VA failed to consider your claim for CFS, then that is CUE error. The VA is required to review ALL the evidence, so if they never even bothered to process your CFS, claim, then that is Cue, because they did NOT consider all the evidence.

Here is how I would handle it. If you have NOT already been awarded disability for CFS, then file a claim for it now, but be sure to mention that you originally filed in 1993, but have not heard anything and you are checking on the status of the 1993 claim. If you have been awarded CFS, within the past 12 months, but at an effective date later than 1993, then file a Nod on the decision, protesting the effective date. If you have been awarded CFS w an effective date later than 1993, but that decision was more than a year ago, then file a CUE nod of the decision stating that the VA erred in its failure to consider you for CFS in 1993, so that should be your effective date.

[carlie]

Cruinthe

Altho I am not one of those "super searchers" of cases and regs, I think you should file a Cue based on the fact that the VA did not adjucate your claim for 'Chronic Fatigue" Syndrome back in 1993, as follows. Berta is right..don't Cue it on the basis of "Duty to Assist" (DTA) as that will be denied.

I think I can quote this almost word for word. Basically, the VA must consider all claims, and give a liberal interpretation to the Veterans filings. (They cant tell you that you had to use the words, "Chronic Fatigue SYNDROME" because "Chronic Fatigue" is sufficient.) If the VA failed to consider your claim for CFS, then that is CUE error. The VA is required to review ALL the evidence, so if they never even bothered to process your CFS, claim, then that is Cue, because they did NOT consider all the evidence.

bronco,

An unadjudicated claim does not even begin to meet

the legal criteria for a claim of C&UE.

Cruinthe

I agree with pr's post below.

If you requested SC for CFS in 1993 and a rating decision

was not promulgated on it -

then it would have remained an unadjudicated claim.

Filing a claim of C&UE on an unadjudicated claim will be denied,

as it doesn't meet the legal criteria for C&UE.

I did notice in a sentence you posted,

"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 I'm sure you're aware these are two different and distinct conditions.

Dependent on the medical evidence of record in 1993, you maybe

able to get an EED to provide for at least, staged ratings.

jmho,

carlie

[broncovet]

Carlie..

You may be right about "unadjuticated claims" failing to meet the Cue standard, but I seem to recall reading otherwise. If you are aware of a

precedential case where a Veteran was denied CUE on an unadjuticated claim, it would be good if you could post it. I am just not that great of a researcher as you, and in the CUE regs, I dont think it specifies that unadjuticated claims dont qualify. In fact, I thought a violation of any regulation (except for VCAA's DTA, as Berta pointed out) would at least be eligible for CUE, that is, if the case met the other requirements for CUE..such as it having to be a "glaring error". I would think the VA violation of any regulations would be CUE, but it does have to be MATERIAL, and effect the outcome.

I will be happy to "back off" of my position that an unadjuticated claim is not CUE, if you cite a decision or reg so demonstrating it. I can not remember, but I think it is a precedential case that specifies the VA has to consider ALL the evidence and all claims, before rendering a decision. Therefore, if the VA does not even consider a Veterans claim for CFS, it would be in violation, providing, of course, the Veteran had evidence of applying for CFS prior to a decision.

Edited January 3, 2010 by broncovet

[Wings]

Carlie..

You may be right about "unadjuticated claims" failing to meet the Cue standard, but I seem to recall reading otherwise. If you are aware of a precedential case where a Veteran was denied CUE on an unadjuticated claim, it would be good if you could post it.

I am just not that great of a researcher as you, and in the CUE regs, I dont think it specifies that unadjuticated claims dont qualify. In fact, I thought a violation of any regulation (except for VCAA's DTA, as Berta pointed out) would at least be eligible for CUE, that is, if the case met the other requirements for CUE..such as it having to be a "glaring error". I would think the VA violation of any regulations would be CUE, but it does have to be MATERIAL, and effect the outcome.

x

x

x

A Decision must be FINAL before CUE can be alleged. A Pending claim (one that was never adjudicated) is in a non-final status; therefore, CUE can not attach. ~Wings

see 2009/12/1 09-7024 CAVC Charles v. Shinseki http://www.cafc.uscourts.gov/opinions/09-7024.pdf

Edited January 3, 2010 by Wings