ptsd Earlier Effective Date For Tdiu

[BlakePaigeStone]

I just saw ...yesterday, (on the VA's eBenefits web-site), that my claim has been moved, from the 'decision-phase,' to the 'closed-phase.' Is it unusual for a claim to skip the 'notification-phase?' Is this an indication of anything 'negative?'

I filed the claim on May 20, 2010; and ...it was for an award of retro-active TDIU benefits ...due to CUE. I've been rated at '70%/TDIU' ...for PTSD, since 2002. I was service-connected in 1995, at 30% ...however, I received all of my ratings at the same time ...in 2002. So, the VA rated me from 1995, to 2002, at 30%; then, raised/increased my rating to 70% in 2002 ...plus, awarded me TDIU - P&T. This was all done at the very same time; and ...I received everything in the very same envelope ...in May, 2002.

I claimed that the CUE was made because of all of the 'informal claims' for TDIU, that were ignored, between 1995 and 2002; including my VA Medical Center doctor's diagnosis, (inpatient PTSD program), of 'PTSD-Chronic - w/Unemployable' ...upon my discharge from the hospital, in December of 1995.

I claimed CUE since the claim had been 'closed' since June of 2003. However, the regional office followed-up with a request for me to complete a 'TDIU form,' and send it back. So, the CUE issue was by-passed ...right?! Could they have re-opened my old claim ...because of 'new and material evidence' ...instead? I was also awarded SSDI, very shortly after my VA award.

Does this smell like it could result in 'bad news' for me ...when I get my decision, in a couple of weeks? Does it look like I should prepare for an appeal?

Will '...anyone,' please advise. Thank you!

[Berta]

"So, the VA rated me from 1995, to 2002, at 30%; then, raised/increased my rating to 70% in 2002 "

Receipt of a formal TDIU application is what justifies the VA to consider TDIU.(and prepare a proper EED)

Did the VA have in their possession, medical evidence from 1995 to 2002, that should have warranted a higher rating then the 30% or warrant TDIU then?

"I was also awarded SSDI, very shortly after my VA award."

Was the SSA award solely for th same SC condition they rated you at 30 % for?

If so did this SSA award have an entitlement date that preceeded the 30% award?

Is VA fully aware of, and did they obtain, your SSA records yet?

"I claimed that the CUE was made because of all of the 'informal claims' for TDIU, that were ignored, between 1995 and 2002"

I don't see that as a basis for CUE. Others will chime in.

It is the 21-8940 form form that triggers VA to consider TDIU.

Do you have a vet rep helping you on this?

There is a wealth of CUE info in our CUE forum here.

I have had a CUE pending since 2004.

The legal errors involved wrong diagnostic codes for one disability that should have been rated at 100% under 1151 and then a total lack of any rating or diagnostic code at all in the same decision for IHD that awarded 1151 DIC for wrongful death due to misdiagnosed IHD.With a prior award of 100% P & T for PTSD that same year, VA had ample cause to consider and award accrued SMC.

AT the time my rep questioned the lack of SMC consideration but didnt advise me to file NOD because he said 1151 claims are different than regular SC claims.

I had been through 3 years of fighting them at that point,had won my FTCA case, and had received an accrued award months before the 1151 DIC for PTSD accrued and was tired of those ordeals and I didn't question this at that time.

But the rep was wrong.

When I realized the decision (actually 2 decisions were wrong) was wrong I used numerous legal citations and a General Counsel opinion to support my CUE.

Since 2004 the RO ignored all of my legal evidence in denying the CUE claim ( actually I filed 2 of them)

and even made up what they tried to suggest to be VA case law in their last letter.I asked them to produce any reg that supports what they said.

In my case the medical evidence was clearly established and VA case law itself warranted a SMC accrued award.

CUE is like the Watergate question in many ways-what did VA know and when did they know it.

Did the VA have sufficient medical evidence at time of this alleged CUE to warrant you a higher rating than the 30%? Did they know this evidence was in VA's possession when they made the older decision?

For a successful CUE claim the medical evidence must be already established.

[Berta]

Forgot to ask- from 1995 to 2002 did you work?

[Hoppy]

This was all done at the very same time; and ...I received everything in the very same envelope ...in May, 2002

The fact that everything came in the same envelope at the same time does not mean much. It sounds like you had an open claim that took seven years for them to service connect you, with an effective date of 1995. That is a long time. They could have pulled your treatment records in 2002 and determined your condition warranted TDIU at that time. They are not supposed to rate a claim with old medical records. If you had a service officer, the SO could have filed for a higher rating at any time and not even told you. We would be in a much better position to answer your question if you cited some of the logic right from the original decision as to how the award was determined in 2002.

Cue claims based on informal TDIU requests have been subject to changing laws that make it harder to win this type of claim. The VA will tear doctors reports apart. It would not surprise me if they say they interpreted the docotors comment that PTSD with unemlpoyable applied to the time you were in the hospital. When seeking TDIU I tell the veteran to get a very specific statement that addresses the inability to work with a specified amount of time. Such as, the veterans PTSD is so severe as to make the veteran unable to sustain gainful employment and his condition is not likely to improve in the future.

I will try and find some of the new decisions addressing informal TDIU. The way the new decisions are going the only way you can get retro TDIU is if they decide that it was totally obvious you had a long term inability to obtain gainful employment. Anything is possible with the VA. They might even find something that you did not bring up and CUE themselves.

T

[carlie]

I do not see this claim for CUE for the IU to be

retro'd back to 1995.

IMO there has been lots of posts on informal claims

that contain some information that is not correct.

Sometimes claimants feel such and such is an informal claim

when in reality it is not.

JMHO

[BlakePaigeStone]

"So, the VA rated me from 1995, to 2002, at 30%; then, raised/increased my rating to 70% in 2002 "

Receipt of a formal TDIU application is what justifies the VA to consider TDIU.(and prepare a proper EED)

Did the VA have in their possession, medical evidence from 1995 to 2002, that should have warranted a higher rating then the 30% or warrant TDIU then?

*I was diagnosed by my VAMC inpatient doctor at the end of my hospitalization ...in December of 1995, with 'PTSD-Chronic w/Unemployable.' My original claim was filed from that VAMC, in 1995. I signed their requests for all my VAMC medical records.

"I was also awarded SSDI, very shortly after my VA award."

Was the SSA award solely for th same SC condition they rated you at 30 % for?

Yes. It was for my PTSD-Chronic.

If so did this SSA award have an entitlement date that preceeded the 30% award?

No. My SSA claim was filed afterwards. I had to go through SSA's reconsideration, and hearing process. Their award came from their administrative judge. Entitlement date was set at their two-year maximum retro-period.

Is VA fully aware of, and did they obtain, your SSA records yet?

Not at the time of my VA award; as ...my SSDI hearing hadn't, yet, been scheduled by the time I'd received notice, (July, 2002), of my VA award. The SSA did, however, pay me their maximum, (2-years), retro-active benefits.

"I claimed that the CUE was made because of all of the 'informal claims' for TDIU, that were ignored, between 1995 and 2002"

I don't see that as a basis for CUE. Others will chime in.

Ok; but ...me, and my attorney, had been petitioning the VARO about my need to establish service-connection, since 1995 ...to 2002. I had, during that period, become chronically unemployed, and homeless. Eligibility for TDIU couldn't, formally, be filed until I'd established service-connection. So, wouldn't that make their TDIU formality moot ...anyway.

It is the 21-8940 form form that triggers VA to consider TDIU.

I received notice of TDIU eligibility along with everything else in my rating notification, in July, 2002. In fact, I don't even recall filing a 21-8940 myself. My '7-year old' claim had been awarded by the VAROIC-Philadelphia ...after my claim-folder followed me from the VARO-Newark; to the VARO-Atlanta; and back to the VAROIC-Philadelphia. Each VARO refused to utilize the other VARO's claim-development paperwork! They each started my claim ...from scratch.

Do you have a vet rep helping you on this?

My VSO is, and has always been, the 'DAV;' but ...my seven-year claim experience, taught me more than most of them even knew about the specifics of my claim! I even filed a 'Writ of Mandamus' to stimulate adjudication of my claim. My claim was awarded within 30-days of my filing the Writ. I have been trying to contact the DAV office, in Honolulu, where my claim is adjudicated, since I saw the VA's eBenefits web-site posting of my claim to the 'closed-phase.' (directly from the 'decision-phase)

There is a wealth of CUE info in our CUE forum here.

I went over it when I was filing my CUE claim, in May, 2010. They responded by sending me a 21-8940.

I have had a CUE pending since 2004.

Good luck! I'm, however, thinking/guessing ...that they just considered my claim a request to re-open a final decision, for a retro-active increase ...under 'new and material evidence.' (???)

The legal errors involved wrong diagnostic codes for one disability that should have been rated at 100% under 1151 and then a total lack of any rating or diagnostic code at all in the same decision for IHD that awarded 1151 DIC for wrongful death due to misdiagnosed IHD.With a prior award of 100% P & T for PTSD that same year, VA had ample cause to consider and award accrued SMC.

AT the time my rep questioned the lack of SMC consideration but didnt advise me to file NOD because he said 1151 claims are different than regular SC claims.

I had been through 3 years of fighting them at that point,had won my FTCA case, and had received an accrued award months before the 1151 DIC for PTSD accrued and was tired of those ordeals and I didn't question this at that time.

But the rep was wrong.

When I realized the decision (actually 2 decisions were wrong) was wrong I used numerous legal citations and a General Counsel opinion to support my CUE.

Since 2004 the RO ignored all of my legal evidence in denying the CUE claim ( actually I filed 2 of them)

and even made up what they tried to suggest to be VA case law in their last letter.I asked them to produce any reg that supports what they said.

In my case the medical evidence was clearly established and VA case law itself warranted a SMC accrued award.

CUE is like the Watergate question in many ways-what did VA know and when did they know it.

Did the VA have sufficient medical evidence at time of this alleged CUE to warrant you a higher rating than the 30%? Did they know this evidence was in VA's possession when they made the older decision?

I would think so; as ...my VA doctor's diagnosis was written after my discharge from the VAMC, in December, 1995. My submitted claim, (May, 2010), which resulted in the VARO-Honolulu sending me a TDIU form follows:

Re: Claim for an earliereffective date for TDIU eligibility …due to CUE by the regional office whichawarded my original TDIU rating, (‘effective May 30, 2002’), decision, on July 26,2002; which became effective in May 30, 2002.

I receivedthat rating decision shortly after its mailing, on July 29, 2002; along with‘all’ of my rating awards! I also received notice of the 30% rating, for PTSD…which dated back to ‘September 1, 1995.’ I had filed my original claim during the August/September, 1995time-frame for PTSD …while I was hospitalized, (VAMC-Lyons, NJ), and assigned atemporary permanent and total rating from September 13, 1995, to January 1,1996. The notice of assignment of my 70% rating was also included in the ratingdecision that was mailed to me, along with all the other rating decisions, in July, 2002. This was my ‘first’notification of ‘any’ rating decision award; and, the chance to file a‘formal’ application for total, (TDIU), benefits! This, of course, excludes all of my ‘informal’applications for total disability. A review of all of my evidence will,however, show that I filed a claim of entitlement to TDIU on May 30, 2002;however …there are many communications in my file, that could have beenconstrued as ‘informal’ applications for TDIU …especially the doctor’sdiagnosis of ‘PTSD-Chronic, with Unemployability.’ The communications shouldnot be considered effectively moot, since my service-connection rating decisionretro-actively awarded an effective date of September, 1995. By its very nature,TDIU is not assignable unless service-connection is in effect. The possibilityfor a TDIU claim did not exist until service-connection became effective for myVAMC-diagnosed ‘PTSD-Chronic.’ Although service-connection was established,effective September 1, 1995 …I did not receive my rating decisions ‘…until July, 2002!’ Therefore, a formalapplication, for TDIU, was ‘not’ possible until then; but …many informalapplications existed in my file, and were erroneously overlooked by theexaminer.

I knewnothing of any possible ‘award date,’ in order to subsequently file the TDIUclaim, at that time, (September, 1995); as …my VAMC-Lyons, NJ …medical diagnosis, of PTSD-Chronic, withUnemployability, was of record when I was discharged in December, 1995.That was‘sevenyears’ before I finally received my rating award!

An increasein disability had definitely occurred after my original claim was filed; and…long before I finally received my rating award notice …in 2002. The showing of‘chronic’ disease, that is accompanied by a diagnosis, (VAMC-Lyons, NJ –December, 1995), establishes that there is no requirement of evidentiary showingof continuity. The regional office should have considered my treatment recordsfrom my attending PTSD doctor, at VAMC-Lyons, NJ, including his finaldiagnosis of PTSD-Chronic, with Unemployability.

Subsequentevaluation reports from the ‘Vet Center,’ in Philadelphia, PA; the medical reports from VAMC-Coatesville, PA; the medical reportsfrom VAMC-Atlanta, GA; and, the medical reports from the VAMC-Philadelphia, PA ‘…all showing anincrease in PTSD-Chronic symptoms,’ supported the assignment of a much higher,‘initial,’ percentage rating.

The regionaloffice assigned the higher rating, of 70%, with an effective date of May 30,2002 …to grant the TDIU; but …the rating decisions all arrived, (July, 2002),at thevery same time …in the very same envelope …with an effective date, (at 30%), of September, 1995!

The datedmedical reports, of the increases in my disability, which occurred after my original claim wasfiled, were apparently never adjudicated by the regional office; as …all of myVAMC medical records, (from VAMCs in Philadelphia, PA; Coatesville, PA; Lyons, NJ;Atlanta, GA; and, the ‘Vet Center’ in Philadelphia, PA), were readilyavailable to the regional office well before the time of my original award,(whichfinally allowed me to, formally, file for TDIU), in 2002.

The multitudeof communications, between me, my attorney, and the regional office …indicatingmy ‘acute increase in my disability,’ which should have been interpreted asinformal claims for ‘total disability,’ were missed by the regional officeduring adjudication. The regional office was legally required to identify, andact, on informal claims for benefits. There was also proof of other disallowedclaims for disability in my file at the time. It took the VA ‘sevenyears’ to adjudicate my claim for total disability!

I contendthat the VA regional office failed to appropriately apply the regulatorycriteria as it existed at the time of my initial claim. Despite the fact that Idid not use the ‘magic term,’ of ‘CUE,’ with respect to my many communicationsto the VARO, including the denials of my previous formal claim for PTSD, reviewof my file should prove that the granting of my claim for an earlier effectivedate for total disability/TDIU is valid. It will also show that the regionaloffice made a ‘Clear and Unmistakable Error’ in granting ‘May 30, 2002’ as my TDIUeffective date!

It appearsthat the VA’s statutory or regulatory provisions, at the time, were incorrectlyapplied. My file’s documentation exist, without question, and …if the error hadnot been made, the outcome of awarding an original effective date for my PTSDrating award, which allowed me to make my application for TDIU, and subsequenteffective date of May 30, 2002 …it would manifestly be changed to a date that’smany years earlier than it currently is.

It is alsovery clear …from the evidence of record, that the face of the existing error,in assigning my effective date for my TDIU, should be ‘reversed’ to the time ofmy increased disability, (shortly after my discharge from the VAMC-Lyons, NJ PTSDprogram, in December, 1995), rather than vacated and/or remanded …since a remand would onlyserve to fulfill a procedural duty that would unnecessarily delay and burden VARegional Office resources.

If a remand,to the VARO-Philadelphia, PA, is necessary, please assure that my ‘C-file’ is returned to theVARO-Honolulu,HI…which is where I have previously requested that my file ‘permanently’reside …before it was transferred to the ‘BVA, in Washington, DC,’ for mydaughter’s claim for, retro-active, dependent educational benefits. Please …do not, (as I have previouslyrequested), under ‘any’ circumstances, send my file to theVARO-Manila!

The RegionalOffice examiner had, obviously, also, failed to ‘review’ my Social SecurityAdministration ‘total disability records;’ and …all of my VA medical records. Ialso feel that my July, 2002 rating decision, assigning an effective date ofSeptember 1, 1995, (which I didn’t receive until ‘July, 2002’) …failed to assign theproper rating of 70%, or higher, for my PTSD, at that time. It is inextricablyintertwined with the issue of my entitlement to an earlier effective date formy award of TDIU, since I had been communicating with the VARO, for years,(raisingclaims of CUE), asserting that the evidence compelled the VARO to grant me arating of service-connection. All of this information was of record at the time of my ratingdecisions.

Thank you, in advance, for your cooperation in this matter; and …I lookforward to your prompt reply. If you have any questions, please feelfree to call me.

For a successful CUE claim the medical evidence must be already established.

[BlakePaigeStone]

Forgot to ask- from 1995 to 2002 did you work?

No; in fact, my employment and earnings started to drop-off, considerably, (according to SSA records), after 1983. I haven't worked since 1994! I put that on the TDIU form that the VARO sent to me.