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!

[Hoppy]

John, Right your are. CUE is a multi-step process and all steps must apply.

Wow; I had forgotten about that experience. That's probably why I was awarded the 30% rating ...huh?! Hmm-m-m!

Considering the history of your claim I figured they would have scheduled a C&P early in the claim. That is why I brought it up. I try to read in between the lines. With reading in between the lines in mind, I doubt that they gave weight to the C&P examiners opinion you did not have PTSD. Otherwise they would not have service connected you for PTSD so long after discharge. However, there is probably something in there they used to justify the 30%. The VA raters are pretty good at covering there ass with medical reports even if the medical reports are bogus. Half the battle is rebutting bogus medical reports prior to a decision. The other half is filing timely appeals. Once a claim is closed and the appeal pertiod runs out it becomes almost impossible to rebut the bogus medical reports in a way that you get retro. However, rebutting the bogus reports can get service connection with the date the new evidence was submitted. That is what happened to the veteran I was talking about who tried to base a CUE on factual errors made by a C&P examiner. I was taught that on a CUE factual errors must arise from a raters actions or inactions.

Edited May 8, 2011 by Hoppy

[broncovet]

Blake

While I have not read any of your evidence, nor any of your decisions, based on what you posted, I will dissent and say that it is likely there is CUE as follows:

1. You need to remember that ONLY ONE formal claim is required. Any other claim "refers" back to your original formal claim, and amounts to an increase. It is simply unnecessary and redundant to make a formal claim for PTSD, another formal claim for hearing loss, another formal claim for TDIU, another formal claim for NSC pension, etc. Just one, and the others can be informal claims.

2. Your proposed informal claim will likely need to meet the Brokowski 3 part test to establish that it is, indeed an informal claim for increase. In a nutshell, you need to establish that your informal claim for TDIU was 1)written 2) demonstrated an intent to apply for benefits and 3) specified the benefit sought. Remember, the Veteran is not required to have the ability to diagnose his own illnesses, nor is he required to know what "TDIU" means. This means the Veteran can specify SYMPTOMS and not necessarily diagnosis...Diagnosis are made by a doctor, not by the Veteran. Further, the VA is required to give a sympathetic reading to the Veterans filings. In other words, the Vet does not have to write down: I wish to apply for Total Disability for Individual Unemployability as my PTSD has rendered it impossible for me to obtain and maintain Substantial Gainful Employment. Instead, if the doctor writes down that the Veteran is currently unemployed and seeking benefits due to his PTSD, this should suffice. Remember, the "gotcha"...you have to not only tell the doc you are unemployed..but you have to show INTENT to apply for benefits. It is not enough to be unemployed. BUT...the VA has to consider the Vet is seeking the max benefit. So, if you applied for benefits and told the doc you had PTSD and were unemployed...that sounds like an informal claim for TDIU to me.

3. I think you likely have the right idea with alleging CUE based on RO failure to consider all the evidence. If the VA does reject your evidence, then they do need to state in the "reasons and bases" why. If they say something like, "While the Veteran told his doctor he was unemployed due to his PTSD, the Veterans disabilities do not meet the minimum for rating for IU", then they may have a point. But, if they simply ignore probative evidence, then you can allege CUE as the VA is required to consider all evidence of record in their decision. The VA has a responsiblity to tell you why you dont meet the requirements for benefits. That is, they have to give you a "reason and basis". They would love to skip this, but they cant. When they do give a "reasons and basis" for the decision, then you can attack those reasons. Bell vs Derwinski points out the VA is assumed to have certain evidence in their possession, even if they do not, so they cant just say, "well we did not know about that".

4. Finally, the VA has a duty to sympathetically read and interpret the Veterans filings BEFORE applying the standard of review. In other words, the VA reads what the Vet wrotes, interprets it, then decides what standard of review..the Cue standard, the benefit of the doubt, etc. This is important because EVEN in cases of CUE, the VA still has to give a liberal interpretation to determine what is the benefit sought. If you have already been awarded IU, then this would mainly apply to its effective date.

This is all JMHO, and is all posted to help a Vet, wherever possible.

[BlakePaigeStone]

Comer V Peake might help you;

http://veteranclaims...-552-f-3d-tdiu/

"I did go to another C&P Exam, sometime shortly after arriving in Atlanta, Ga. It must have been in 1996-1997 ..."

Do you have copies of those older decisions?

Unfortunately not. I used to have copies of much of my file, back in 2002 ...however, after moving around, (from New Jersey ...to Atlanta, GA; back to Philadelphia, PA; to the Minneapolis/St. Paul, MN area; to the San Diego, CA metro area; to Maui, HI; and ...finally to the Philippines), so much, I'd started jettisoning things that I thought I'd never use again. Stupid ...huh?!

I have a pending claim filed, currently, for a copy of my c-file; as ...its effective date is September, 2010. I don't know if I'll ever get a copy, though; because ...it was over two-folders in size, when I last saw it at my C&P exam, in 2001/2002.

[BlakePaigeStone]

The failure to base a rating decision on all available evidence is a CUE, but you can still lose your claim for a benefit. I know becasue the BVA admitted the RO made a CUE in my claim back in 1971, but denied my claim for a higher rating based on the exclusion of available evidence favorable to the veteran. Now my denied CUE sits at the Court of Vet Appeals waiting for the VA's response to my lawyer's brief. When the VA makes a CUE by not basing their rating on all available evidence the VA gets to say that the evidence excluded would not have "undebateably" changed the outcome of the rating. The also can say that "reasonable minds" would not have changed the rating even if the VA made an error. This is why you need to hire a lawyer to argue against these excuses and loopholes. They won't turn loose hundreds of thousands of dollars without some rabbit punches to the back of your head.

Reasonable minds ...huh?! Do any exist in your regional office? (smile) Since Berta shook my memory about that negative doctor's verbal statement to me, at the 1996/1997 VARO-Atlanta C&P exam ...I'm thinking that is what the 30% rating was based on. It was very shortly after I'd been released from the VARO-Lyons PTSD Program ...where I'd been diagnosed, in their final medical reports, with 'PTSD-Chronic, w/Unemployable.'

If I'm going to have to take a few 'punches to the back of my head,' I'm going to also ...throw a few, myself!

[BlakePaigeStone]

Blake

While I have not read any of your evidence, nor any of your decisions, based on what you posted, I will dissent and say that it is likely there is CUE as follows:

1. You need to remember that ONLY ONE formal claim is required. Any other claim "refers" back to your original formal claim, and amounts to an increase. It is simply unnecessary and redundant to make a formal claim for PTSD, another formal claim for hearing loss, another formal claim for TDIU, another formal claim for NSC pension, etc. Just one, and the others can be informal claims.

2. Your proposed informal claim will likely need to meet the Brokowski 3 part test to establish that it is, indeed an informal claim for increase. In a nutshell, you need to establish that your informal claim for TDIU was 1)written 2) demonstrated an intent to apply for benefits and 3) specified the benefit sought. Remember, the Veteran is not required to have the ability to diagnose his own illnesses, nor is he required to know what "TDIU" means. This means the Veteran can specify SYMPTOMS and not necessarily diagnosis...Diagnosis are made by a doctor, not by the Veteran. Further, the VA is required to give a sympathetic reading to the Veterans filings. In other words, the Vet does not have to write down: I wish to apply for Total Disability for Individual Unemployability as my PTSD has rendered it impossible for me to obtain and maintain Substantial Gainful Employment. Instead, if the doctor writes down that the Veteran is currently unemployed and seeking benefits due to his PTSD, this should suffice. Remember, the "gotcha"...you have to not only tell the doc you are unemployed..but you have to show INTENT to apply for benefits. It is not enough to be unemployed. BUT...the VA has to consider the Vet is seeking the max benefit. So, if you applied for benefits and told the doc you had PTSD and were unemployed...that sounds like an informal claim for TDIU to me.

3. I think you likely have the right idea with alleging CUE based on RO failure to consider all the evidence. If the VA does reject your evidence, then they do need to state in the "reasons and bases" why. If they say something like, "While the Veteran told his doctor he was unemployed due to his PTSD, the Veterans disabilities do not meet the minimum for rating for IU", then they may have a point. But, if they simply ignore probative evidence, then you can allege CUE as the VA is required to consider all evidence of record in their decision. The VA has a responsiblity to tell you why you dont meet the requirements for benefits. That is, they have to give you a "reason and basis". They would love to skip this, but they cant. When they do give a "reasons and basis" for the decision, then you can attack those reasons. Bell vs Derwinski points out the VA is assumed to have certain evidence in their possession, even if they do not, so they cant just say, "well we did not know about that".

4. Finally, the VA has a duty to sympathetically read and interpret the Veterans filings BEFORE applying the standard of review. In other words, the VA reads what the Vet wrotes, interprets it, then decides what standard of review..the Cue standard, the benefit of the doubt, etc. This is important because EVEN in cases of CUE, the VA still has to give a liberal interpretation to determine what is the benefit sought. If you have already been awarded IU, then this would mainly apply to its effective date.

This is all JMHO, and is all posted to help a Vet, wherever possible.

I'm currently at a huge disadvantage, to answer anyone's questions, because I don't have a copy of my C-file at my disposal ...yet. I don't care how long it takes me to get a copy, I will keep trying, until I get it! It's called... my 'F.O.I.A. claim' on the VA's eBenefits web-site; and ...I first made the request in September, 2010.

I'll know something, as soon as my DAV office, in Honolulu, opens; as ...I plan to get on my V.O.I.P. U.S. phone-line at 2am, Tuesday ...my time-zone! (that will make it 8am, Monday ...in Honolulu, HI)

Thanks ...for all of your input. It's been very enlightening; and ...extremely helpful.

[Philip Rogers]

It's my understanding that a congress person can get any records you need with inv a very brief period. You might want to try it. jmo

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