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

[broncovet]

Wings...

I could not open the case you posted, but which claim has to be final? If you got a decision and it adjuticated some claims but failed to adjuticate others, would that decision not become final after one year? So would that not be a CUE on a finalized decision? The CUE would be on the decision that had become final, and NOT on the pending claim. I dont know.

I think the courts have recently said that an unadjuticated claim DOES become final after one year. That is, if the Veteran applies for PTSD and TDIU, and the RO blows off the TDIU claim and adjuticats the PTSD claim, the TDIU claim is "deemed denied" and the one year appeal clock starts ticking.

Edited January 3, 2010 by broncovet

[carlie]

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.

Wings,

Thanks for helping out with that post and link :)

bronco,

Below are several of the regs for a claim of C&UE.

This is not by any means a precedent setting decision

and it's only a BVA decision.

Where it spells out,

"However, a final Board decision may be revised or

reversed on grounds of clear and unmistakable error."

holds true at the RO level also.

The last post you made in this thread is way off base for a claim of C&UE.

jmho,

carlie

http://www4.va.gov/vetapp09/files2/0915141.txt

Governing Laws and Regulations

A decision issued by the Board is final. 38 U.S.C.A. §§

7103, 7104(a) (West 2002); 38 C.F.R. §§ 20.1100, 20.1104

(2008). However, a final Board decision may be revised or

reversed on grounds of clear and unmistakable error.

38 U.S.C.A. §§ 5109A(a), 7111(a) (West 2002). Motions for

review of prior Board decisions on the grounds of clear and

unmistakable error are adjudicated pursuant to the Board's

Rules of Practice at 38 C.F.R. §§ 20.1400-20.1411.

If the evidence establishes clear and unmistakable error, an

undebatable, outcome- determinative error, the prior decision

must be reversed or revised, and the decision constituting

reversal or revision has the same effect as if the decision

had been made on the date of the prior decision. 38 U.S.C.A.

§ 7111(b). See also 38 C.F.R. § 3.105(a).

Clear and unmistakable error is a very specific and rare kind

of error. It is the kind of error, of fact or of law, that

when called to the attention of later reviewers compels the

conclusion, to which reasonable minds could not differ, that

the result would have been manifestly different but for the

error. Generally, either the correct facts, as they were

known at the time, were not before the Board, or the

statutory and regulatory provisions extant at the time were

incorrectly applied. 38 C.F.R. § 20.1403(a); Luallen v.

Brown, 8 Vet. App. 92, 95 (1995). The "benefit of the doubt"

rule of 38 U.S.C.A. 5107(b) does not apply to a motion to

revise a Board decision due to clear and unmistakable error.

38 C.F.R. § 20.1411(a).

To warrant revision of a Board decision on the grounds of

clear and unmistakable error, there must have been an error

in the Board's adjudication of the appeal which, had it not

been made, would have manifestly changed the outcome when it

was made. If it is not absolutely clear that a different

result would have ensued, the error complained of cannot be

clear and unmistakable. 38 C.F.R. § 20.1403©. Clear and

unmistakable error does not include a change in medical

diagnosis that "corrects" an earlier diagnosis considered in

a Board decision, VA's failure to fulfill the duty to assist,

a disagreement as to how the facts were weighed or evaluated,

or a change in the interpretation of a statute or regulation

which was previously correctly applied. 38 C.F.R. §

20.1403(d).

A motion for revision of a decision based on clear and

unmistakable error must be in writing, and must be signed by

the moving party or that party's representative. A request

for revision of a Board decision based on clear and

unmistakable error may be instituted by the Board on its own

motion or upon request of the claimant. 38 U.S.C.A. §

7111©; 38 C.F.R. § 20.1400(a). The motion must include the

name of the Veteran; the name of the moving party if other

than the Veteran; the applicable VA file number; and the date

of the Board decision to which the motion relates. Motions

that fail to comply with these requirements shall be

dismissed without prejudice. 38 C.F.R. § 20.1404(a).

A claim requesting review for clear and unmistakable error

may be filed at any time after the underlying decision is

made. 38 U.S.C.A. § 7111(d); 38 C.F.R. § 20.1404©.

Pursuant to an opinion of the VA General Counsel, VAOPGCPREC

1-98, the Board's authority applies to any claim pending on

or filed after the date of enactment of 38 U.S.C.A. § 7111,

that is, November 21, 1997. See 38 C.F.R. § 20.1400. The

moving party's motion for review or revision was filed with

the Board in March and May 2008.

In other cases prior to promulgation of this regulation, the

United States Court of Appeals for Veterans Claims (Court)

has defined clear and unmistakable error as an administrative

failure to apply the correct statutory and regulatory

provisions to the correct and relevant facts; it is not a

mere misinterpretation of facts. Oppenheimer v. Derwinski, 1

Vet. App. 370, 372 (1991). The Court has also held that a

finding that there was such error "must be based on the

record and the law that existed at the time of the prior . .

. decision." Russell v. Principi, 3 Vet. App. 310, 313-14

(1992). Subsequently developed evidence may not be

considered in determining whether error existed in the prior

decision. Porter v. Brown, 5 Vet. App. 233, 235-36 (1993).

The error must be one which would have manifestly changed the

outcome at the time that it was made. Kinnaman v. Derwinski,

4 Vet. App. 20, 26 (1993). "It is a kind of error, of fact

or of law, that when called to the attention of later

reviewers, compels the conclusion, to which reasonable minds

cannot differ, that the results would have been manifestly

different but for the error." Fugo v. Brown, 6 Vet. App. 40,

43 (1993). Clear and unmistakable errors "are errors that

are undebatable, so that it can be said that reasonable minds

could only conclude that the original decision was fatally

flawed at the time it was made." Russell, 3 Vet. App. at

313.

[broncovet]

Wings/Carlie

Hopefully, the issue of whether an unadjuticated claim is final after a year or is still pending because it wasnt adjucitated, would be resolved in the most favorable way to the Veteran.

Again hypothetically, the Vetran could apply for PTSD and TDIU and the VA only addresses PTSD and makes no mention of TDIU. One year or more passes. Is the Vets TDIU claim still "pending" or was it "deemed denied"? If the Vets claim is still pending, then he would not NEED to meet the CUE standard. If it was "deemed denied" then he would have to meet the Cue standard for appeal after one year.

Now what usually happens is that the VA issues another decision, which may/may not address TDIU this time. If the VA awards TDIU on the second decision, could the Vetran not file a NOD for an EED, contending that he applied earlier? He would not need to file a CUE.

However, if the second decision also failed to address TDIU, can the Veteran not appeal the second decision within the one year period, contending that it failed to address TDIU also?

I am pretty sure we are getting into a "benefit of the doubt" scenario, since it is a grey area whether or not the claim is "deemed denied" or if it is still pending. The Veteran (or his lawyer) could argue either way...the claim is pending, and he is entitled to a decision (or an EED if a decison has been made) OR the claim has been "deemed denied" and it is CUE. I am guessing they could argue for the benefit of the doubt since it is very unclear whether this claim is pending or deemed denied. If the TDIU claim is pending, then it is an error of the VA because they are supposed to expidite TDIU claims. If it is deemed denied, then it is a CUE error.

[broncovet]

I am not disputing that a CUE only applies to a final decision. I just dont know WHICH decision that are referring to? Was it the original decision that became final? It really depends on if the unadjuticated claim is "deemed denied". If it is deemed denied at the same time as the one that was adjuticated, then it is a final decision also.

The courts are going to have to make this "deemed denial" thing clear, and I bet Vets and lawyers will test it if they havent already. If it is deemed denied, then it is a final decision subject to review by CUE.

It may not necessarily be bad for the Veteran that this unadjuticated claim is still pending, tho it is certainly unclear on whether or not it is "deemed denied". That could be good because then the Veteran does not have to meet the CUE standard. I think I will CUE the final decision, and let THEM tell me, it is still pending. Because if it is still pending, then I can file a writ of mandamus, demanding that my 8 year old claim be adjuticated.

I think I will send an IRIS email asking them if the TDIU claim is still pending. Then, I will copy the IRIS email, and "hold" them to their statement.

If they say its pending, I will say what do I have to do to get a decision on a TDIU claim that was supposed to be decided in 60 days that has dragged on for 8 years.

However, if they say it is NOT pending, then it would have had to been "deemed denied" if no decision addressed the issue.

Edited January 3, 2010 by broncovet

[Cruinthe]

I should add that I am service connected for chronic fatigue syndrome at 60%. I re-applied for it back in 2007 (I was already 100% T&P) and appealed it up to 60% over the last year and a half, thus meeting the SMC housebound requirements.

I have decided to put this in as a Request for Reconsideration, asking for an award date back to 1993 with the original stamped and dated 4138 from 1993 included in the request.

If its wrong, the VA *should* reply and say "This should be filed as blah blah blah under 38CFR 123".

Also, when was Chronic Fatigue Syndrome added to the C&P structure? I applied back in 1993, did anyone even KNOW what chronic fatigue syndrome WAS back in 1993?

I think I will just add that CFS was added as "presumptive" for we desert storm veterans a few years ago, unless I can find out specifically when CFS was added to 38 CFR.

Thank you ALL for the input.

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

[carlie]

Wings/Carlie

I am pretty sure we are getting into a "benefit of the doubt" scenario, since it is a grey area whether or not the claim is "deemed denied" or if it is still pending.

bronco,

I do not feel the "benefit of the doubt" rule would be applicable here.

First of all something has to meet a state of relative equipoise.

To my knowledge this basically applies to the medical evidence of record

and not to legal criteria such as if an issue has been "deemed denied".

Also, I don't think the term "deemed denied", as our understanding of it to date, came up until several years after after 1993.

Example:

http://www4.va.gov/vetapp09/files1/0900082.txt

See Deshotel v.

Nicholson, 457 F.3d 1258 (Fed. Cir. 2006) (Where the claimant

files more than one claim with the RO at the same time, and

the RO's decision acts (favorably or unfavorably) on one of

the claims, but fails to specifically address the other

claim, the second claim is deemed denied, and the appeal

period begins to run.).

jmho,

carlie