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]

Carlie...

Good point about the "deemed denied" thing not applicable in 1993, because I agree with you the VA didnt pull that "deemed denied" crap until later and CUE only applies to the regulations violated at the time of the decision. So, that would mean the claim is still pending (unless it was adjuticated later). But that is not necessarily unfavorable to the Veteran..in fact, he is in a better position if he does NOT have to prove CUE. He could then demonstrate that an error occurred and he would NOT have to prove the strict CUE standard. The VA does have remedies to fix errors that do NOT have to meet the CUE standard. Some of them are..a NOD, an appeal, request for reconsideration, etc. There is a difference between the claim fails to meet the Cue standard, and claims that dont need to meet the Cue standard. One example of this is a simple timely filed appeal. It does not need to meet the CUE standard. The Vet does not have to prove CUE and can still win his claim. He just needs to prove an Error, and the fact that he does not need to prove a CUE standard error, only bolsters the Vets case. That is, he can win without proving CUE...just like a regular appeal.

I think of it like the "Cue Police"...it is like a security guard that checks to see if your claim meets Cue regulations. On the other side of the fence, there is no "cue police" because those guys filed their NOD within a year,(or maybe their claim was never decided at all, so he gets a ticket past Cue police because there is no decision so how can it be final) so they get a ticket past the cue police...and on to see the judge.

Edited January 3, 2010 by broncovet

[carlie]

bronco,

A real clear and simple way to view this is,

1) A claim issue was made in 1993.

2) This same claim issue remains unadjudicated.

3) Since this claim issue is still pending from 1993 -

all medical evidence of record on this issue, from 1993

has to be considered in it's adjudication ---

not JUST the medical evidence from 1993.

On another note -

Since 1993 - a claim issue of CFS has been granted to the veteran.

I question as to if a claim issue requesting SC of Chronic Fatigue

is the same as a claim issue requesting SC of Chronic Fatigue Syndrome.

carlie

[Philip Rogers]

Carla - you stated: "I question as to if a claim issue requesting SC of Chronic Fatigue is the same as a claim issue requesting SC of Chronic Fatigue Syndrome."

It doesn't matter as long as the symptoms he was requesting a disability for are the same or similar. He should be able to get an EED. They may try to award a stepped award but I feel he could win that, if he has the proper evidence. jmo

pr

[Cruinthe]

For the record, I did state in the original 4138 of 1993 that I was having trouble with joint pain, memory loss, sleep disturbance and other things we NOW know to be part of chronic fatigue syndrome. So I think there is a basis for connection even though I did not get the term perfectly correct.

The FIRST real C&P exam I had for CFS was in 2002. Before that I dont think I had a C&P exam for CFS. Maybe it didnt even exist yet?

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]

I agree with PR..he should be able to get an EED. I think a lawyer would argue that VA's insistence on the words "Chronic Fatigue Syndrome" instead of the Veterans "Chronic Fatigue" would be in violation of the VA's requirement to give a liberal interpretaion of the Veterans filings.

[broncovet]

In the case that CFS was granted later, the Veteran should certainly timely file a NOD to the decision awarding CFS, requesting an EED. Or, if he did not timely file a NOD on the EED, he could then "CUE" a finalized decision, based upon a violation of the regulation requiring the VA to consider the entire evidence.