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

[carlie]

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.

bronco,

I didn't see it posted that there was any problem with,

"VA's insistence on the words "Chronic Fatigue Syndrome" instead of the Veterans "Chronic Fatigue",

it's just that the OP and I both have that question as it would relate

to the claim made in 1993.

carlie

[carlie]

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.

bronco,

Keep in mind the claim of C&UE can only weigh and consider the evidence

of record at the time that Rating Decision was made.

NONE of the evidence accumulated after a final rating decision was promulgated

(that the claim for C&UE has been filed on), is to be up for consideration.

In my opinion the issue of EED for this poster hinges on

1) Was the original claim for CFS pending and unadjudicated up until

what ever happened that got the vet a C&P for CFS in 2002.

(Some type of action got the C&P ordered, my guess is there was N&M

which would re-open the claim, which in turn would also change the ED

to the date of a re-open.)

and

2) What, exactly did the 1993 Rating Decision state and what

medical evidence was of record when the 1993 Rating Decision

was promulgated.

If the OP can post this information I would be very interested in

reading it, if not then I'm going to try to stay out this one any more.

I did bring up staged ratings much further down in the thread,

but even that hinges on most of the above.

jmho,

carlie

[broncovet]

Carlie..

That is a great point about the CUE has to be about the evidence at that time...that evidence after the final decision can not be considered.

BUT...isnt there a "constructive notice" rule about evidence? Isnt it true that if the VA orders our medical evidence, it is assumed they had all of it, even tho they may have shredded or overlooked part of it?

So, maybe the VA should have had this evidence..in this instance the CFS evidence..even tho they may not HAVE REALLY had this evidence, but they had "constructive notice of the evidence" so it would have to be considered..for CUE or otherwise.

I agree with you about the possibility of "staged" ratings, which would not be as beneficial to the Vetran as getting the whole enchilada back to 1993.

I further agree that N&M evidence opens up another whole can of worms. But isnt it true that if cue is proven it goes back to the eed, and N &M evidence is irrelevant to the effective date?

Thanks for hanging in there with me..this is really relevant to my claim for EED and I am really trying to get to the bottom of it and have it crystal clear in my mind (which is hard to do, because my mind is fuzzy..lol)

[Philip Rogers]

Cruinthe: Has a decision ever been issued on the original 1993 claim??????

I suggest we not add anymore to this until he's answered whether they've issued a decision on the original claim. It all may be moot if they've decided and he failed to appeal, within the proper time limits. jmo

pr

Edited January 4, 2010 by Philip Rogers