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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Most Common VA Disabilities Claimed for Compensation:   

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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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starsnstripes

Please Help ! Ptsd C & P Next Week

Question

Hello all (New to this),

I inititiated my claim upon my release from the USAF in 1996 (honorable discharge). It included claims for: dyspepsia (claimed as gastroenteritis and severe abdomen pain), headaches (migraines), urinary tract infection, hemorhayic cystitis, axillary abscess endocervical curretings, recurring yeast infections, carpel tunnel and PTSD as a result of sexual harrassment/assault whileon AD. Per that claim I was awarded 10% for dyspepsia and 10% for headaches. Both w/ an effective date in 1996. It was stated in the reasons and bases section, that "there is no record of PTSD as the result of sexual harrassment/assault while on AD showing a chronic disability subject to SC". I was appalled !! How could there NOT be any available evidence as a major investigation was accomplished by EOC and officials that actually flew in from Langley AB. All complaints were verified and substaintiated by unit personnel. The end result being, the perp was busted down in rank and (supposedly dishonarbly discharged).While the commander was relieved of hisduty for his nonaction as well as actions unbecoming of an officer to name a few. To make a lonnnnnng story short... Everything in reference to the incidents had VANISHED!!! The burden of proof rested on me. I sought out records for the chaplin visits, hospital, EOC, and mental health records. I was AF staioned on an Army post and was advised that basically there was nothing available to me per disposition protocols per such complaints. I immediately spiraled into deeper depression.

In reference to appealing the findings, I had just had a baby was severely depressed and without a support system and therefore did not appeal w/in the 12 month period. I again felt down and alone.

However in 1999, I reinitiated a claim for increase for migraines and dyspepsia and also included the PTSD claim again. In 2000, I was awarded an increase to 30% disabling for the migraines, but the dyspepsia remained at the 10% rating. My overall/combined rating was and still remins at 40%. Denied again on PTSD..

I have again in 2010 reintiated my claim for PTSD (MUCH STRONGER) as it includes a diagnosis of PTSD from a VA practioner as well a letter from a now LT Col. who was a young1st LT at the time of the events. He provided a very strong lttr of his recollection and acknowledgement of the events that took place. I have also paricipated in weekly counseling sessions.

This month I received a phone call from a rep at the ATL regional ofc. She started off the convesation "apologizing on behalf off the VA" in reference to my claims for the sexual/racial/mental harrassment and assault I experienced on AD. She stated that the reviewers of my claim were appalled and reread my statement of events over and over again in disbelief of how these things could have happened period. She advised that the lttr provided by the LT. Col was a "jewel" as it substantiated my claims and that they had actually found evidence of an EOC complaint filed by me per the time period of the alleged incidents. hoop hoop HORRRRRRRRRRAYYYYYYYYYYYYY !!!! I am hopeful....She also advised me that I would be scheduled for a C & P. My C &P is scheduled for next week and I am nervous and anxiety filled(more now than usual).

I have the following questions:

1. How is it that when I sought out EOC evidence I was told none existed, now that it is obviously apparent that a complaint was filed in 1994, could this be a legitimate CUE case?

2. Do I have a good leg to stand on, if awarded PTSD, that they will backdate it to to original claim date in 1996? and how can I request that this happens.

There are many, many, things I left out as I didnt know where to start. I welcome any assistance...... I want whats rightfully mine as I have gone thru hell am still holding on by a thread.

3.

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"1. How is it that when I sought out EOC evidence I was told none existed, now that it is obviously apparent that a complaint was filed in 1994, could this be a legitimate CUE case?

2. Do I have a good leg to stand on, if awarded PTSD, that they will backdate it to to original claim date in 1996? and how can I request that this happens."

I dont see this as CUE but read this carefully under 3.156 © as to newly discovered service records.

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.

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"1. How is it that when I sought out EOC evidence I was told none existed, now that it is obviously apparent that a complaint was filed in 1994, could this be a legitimate CUE case?

2. Do I have a good leg to stand on, if awarded PTSD, that they will backdate it to to original claim date in 1996? and how can I request that this happens."

I dont see this as CUE but read this carefully under 3.156 © as to newly discovered service records.

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.

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Berta,

1st I would like to thank you for your time and the expedited response...... Question : So in laymans terms, the info cites that theres good probability of possibly being entitled to the initial effect date of 96- Due to the fact tht whn I initated my 1st claim per PTSD and the fact that no EOC claim on my part was verified (existed) and now....out of the blue its available?

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Berta,

In respnse to your previous reply, this is an exerpt from correspondance I rcv'd from an EOC rep that I had requested any and all info, evidence and correpondnce per the EOC complaint filed by me : "In accordance with AFI 36-2706, Equal Opportunity Program, it states in para 5.16 Disposition: The MEO office will mantain formal complaint case files for a 2-yr period IAW AF records Disposition Schedule table 36-1, rule 12. This office no longer has any complaint files from 1994-2006 period. The same disposition instructions are provided for informal cases".

** I was discharged in 1996 Aug. I initiated my claim for PTSD in 1996. The EOC comlaint was filed in 1994-95... It should have been available as existant evidence for me. In your "expert" opinion, this still would not conitute a CUE?

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If I were you I would wait for my rating to see what your effective date will be. Then I would take what Berta has posted and use this as the basis for an earlier effective date. If I did not get the earliest date I would take my case to a VA lawyer. I say this because I think the VA will fight giving you the earlier date and it will get complicated legal questions will arise. The main thing now is to get the highest rating possible for the PTSD. Then go back and attack your effective date if the VA does not grant it back to 1996. The evidence to grant PTSD was in existence in 1996, but the VA did not have it, so they say. Since this involves a lot of retro and gets into legal questions I think this is the kind of claim that is made for a lawyer to do since I bet you will be in appeals for a while. Better to sit down with a paid legal expert and get the pros and cons of this case ironed out before you launch a hunt for EED that could take years. I think Berta has nailed the issues, but you need help taking it forward. If I were in your shoes that is what I would do.

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