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Misdiagnosis From 1969


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My MOS was 11E in country Vietnam with the 1st Field Forces. Our AO was Mostly south of Nah Trang, Whisky Mountain, Mang Yang Pass. Mine sweeps, ECT.. I was Dusted off for heat stroke, as my platoon was getting me and some other casualties extracted they chopped out an LZ and when the Med Chopper was coming in I was struck with a small tree in the neck and head, Knocked unconcious, I woke up on the med slick and we were taking fire. Made it to 35 evac ( I am pretty sure) a few days later sent back to the field. A few weeks later while out on patrol I was sent into the firebase for Psychiatric evalution, the sent me up to Cam Ron and on to Japan, in restraints. I spent a couple of weeks at the 249th in Camp Drake, and got to back to my unit via ton son nut, and camp Alpha. I Was back for a few weeks and experienced some stuff and they sent me back to the shrinks and the to a stateside Hospital again in restraints strapped to a litter. I don't remember much, the had me on Thorazine and pretty much knocked out. The Stateside shrinks Diagnosed me with schizoid disorder and a personalty disorder.My exwife sent a letter for my C&P and explained what I was like when I got back, no night sleep , only daysleep, had to wake me up with a broom handle violent outbursts. I was sent this year for a C&P and the psychiatrist changed my diagnosis to PTSD fro 1969. I have AFIB and sleep apnea ECT>>> I was homeless back in the 80's and had a couple of marriages, the whole routine. My question is do I have a retroactive claim for PTSD since 69. I just always thought something was wrong with me.

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"My question is do I have a retroactive claim for PTSD since 69. I just always thought something was wrong with me."

You might have basis for a CUE claim- I think we had a successful CUE claim winner here today- back to 1969 but the topic has moved and I cant find it-

Look under CUE from RSG

Or you might be able to use the fact that perhaps newly discovered service records would warrant a better EED.(earliest effective date)

My7 post on that should be in search -put Newly Discovered service records into the browser

The Vietnam Veterans of America has recently sued the Gov for lousy personality disorder denials when in fact the veterans had PTSD-and not a PD --- that info is here too.

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I think the only way to get the retro back to 1969 is to file a CUE claim. I think if you decide to do that you should get a lawyer. Did you file a claim with the VA when you were discharged? If you did not file a claim you are probably screwed. I think I would take all my medical and personnel records to a lawyer and see what can be done. You probably had TBI and PTSD. The army in those days would find any excuse to get rid of emotionally ill vets via the PD route. It happened to me. The army screwed you and if the VA upheld the Army's DX and refused to service connect you then they also screwed you. The time factor is the problem. You are a poster child for what is wrong with military and VA compensation. We need lots more details about when you first applied for compensation with the VA. Was you discharge ever upgraded to honorable? You might even want to try and challange your discharge since it should have been a medical. This is a difficult process since 40 years have gone by. I have been there also. I could be wrong about the CUE claim, so others will chime in on this.

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Here is the regulation regarding newly discovered service records- I dont know if this can be applied to your case or if it should be developed as a CUE claim.

Perosnally I would file it both ways.

"(q) New and material evidence (§3.156) other than service department records —(1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See §§20.1103, 20.1104 and 20.1304(b)(1) of this chapter

Title 38: Pensions, Bonuses, and Veterans' Relief

Browse Previous | Browse Next

PART 3—ADJUDICATION

Section Contents

Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation

From 3.400 (q) 2006

AND

§ 3.156   New and material evidence.

top

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

© Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))Cross References:

Effective dates—general. See §3.400. Correction of military records. See §3.400(g).

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]

(q) New and material evidence (§3.156) other than service department records —(1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See §§20.1103, 20.1104 and 20.1304(b)(1) of this chapter

Title 38: Pensions, Bonuses, and Veterans' Relief

Browse Previous | Browse Next

PART 3—ADJUDICATION

Section Contents

Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation

From 3.400 (q) 2006

AND

§ 3.156   New and material evidence.

top

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

© Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))Cross References:

Effective dates—general. See §3.400. Correction of military records. See §3.400(g).

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]"

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I think we had a successful CUE claim winner here today- back to 1969 but the topic has moved and I cant find it-

Look under CUE from RSG

Berta,

RSG's CUE post is in the CUE Forum.

BTW - he has not received an answer on his claim for CUE,

he posted he just filed it "only a couple of months ago".

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I think the only way to get the retro back to 1969 is to file a CUE claim. I think if you decide to do that you should get a lawyer. Did you file a claim with the VA when you were discharged? If you did not file a claim you are probably screwed. I think I would take all my medical and personnel records to a lawyer and see what can be done. You probably had TBI and PTSD. The army in those days would find any excuse to get rid of emotionally ill vets via the PD route. It happened to me. The army screwed you and if the VA upheld the Army's DX and refused to service connect you then they also screwed you. The time factor is the problem. You are a poster child for what is wrong with military and VA compensation. We need lots more details about when you first applied for compensation with the VA. Was you discharge ever upgraded to honorable? You might even want to try and challange your discharge since it should have been a medical. This is a difficult process since 40 years have gone by. I have been there also. I could be wrong about the CUE claim, so others will chime in on this.

I just applied this year and got 30 %, for PTSD. I have put in, and am awaiting for Afib and sleep apnea. I never even thought about putting in a claim until a friend told me I should. Thanks for your help.

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Thanks Carlie-I misunderstood his post.

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