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]

Some good CAVC case links here on the issue of informal TDIU claim:

http://veteranclaims.wordpress.com/2011/04/11/single-judge-application-comer-v-peake-552-f-3d-tdiu/

[carlie]

I'll know soon enough; but ...I'm mentally preparing for some type of appeal.

Blake,

I think you will either end up with staged ratings or an EED for IU due to 38 CFR 3.157.

JMHO

[Hoppy]

I will start reading the links Berta posted. The case I remember is one in which the BVA determined that the process that allows TDIU only requires that they consider TDIU when the initial rating would be interpreted as qualifying. Such as a PTSD rating of 70%. A 30% rating does not initiate any requirement to consider TDIU. The term that the BVA used was that they were of the opinion that informal claims for TDIU were "summarily" determined to have no leagal basis based on recent court decisions. They stated that all that would be required by the veteran to advance his objection to the low rating that did not include an assessment for TDIU is to file for a higher rating.

There was a veteran here a couple years ago that kicked this subject around for a couple months. I told him in spite of how the BVA interpreted the recent court decions I would appeal the claim all the way up to a high court again.

In this case, I think that even though a rater could argue that they did not think that the release report from the hospital said "with unemployability" indicated an ongoing circumstance, such an interpretation required speculation by the rater that unemployability was a temporary level of symptoms and the fact that there was no reports indicating that the veteran was capable of returning to work between 1995 and 2002 the assignment of a 30% rating for that time period was based on a factual error. The factual error being that the interpretation of the hospital exam as not indicating an ongoing level of severity to include unemployability has no factual basis. Even though the doctor failed to state that the unemployability would likely continue into the future, unemployability was established by the hospital report until such time there was evidence to the contrary. The rater should have sought a clarification that would justify the 30% rating. Additionally, they VA should have sought the Social Security reports.

According to the GURU who taught me about VA claims you need to turn arguments based on intrepretation of the evidence and failure of the VA to honor their "duty to assist" into factual errors.

Appeal and appeal until you run out of appeals. I can see why you got a lawyer.

This is what happens when when claims take so long to adjudicate. The veteran is so glad to get a paycheck they are not real aggressive about getting the full benefit. I have seen service orgs drop the ball on this way to often. Is the Service officer so uninvolved that he could not ask you in 2002 if you have been working since 1995? Then file the appeal for the higher rating immediately.

Hang in there. I lived with a veteran who had PTSD from the war in Viet Nam. People who think that PTSD does not become severly disabling know nothing about the condition. PTSD spawns all kinds of comorbid symptoms that make employment impossible. I tried to employ the veteran who was my roommate and could not afford the material losses he was causing due to his inability to concentrate. Recently, I started telling people who want to diminish the reality of PTSD to google "Audie Murphy" and read his wikibiography.

Edited May 8, 2011 by Hoppy

[BlakePaigeStone]

Berta, (and ...all others who've replied);

After reading the claim, which I 'copied and pasted,' I could see that the words were all jumbled; so ...I've cleaned it up, for your review, below:

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

I received that 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, formal, claim ...during the August/September, 1995 time-frame, for PTSD …while I was hospitalized, (VAMC-Lyons, NJ); and ...assigned a 100% temporary rating from September 13, 1995, to January 1,1996. The notice of assignment of my 70% rating was also included in the rating decision 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 been construed as ‘informal’ applications for TDIU …especially the doctor’s diagnosis of ‘PTSD-Chronic, with Unemployability.’ The communications should not be considered effectively moot, since my service-connection rating decision retro-actively awarded an effective date of September, 1995. By its very nature, TDIU is not assignable unless service-connection is in effect. The possibility for a TDIU claim did not exist until service-connection became effective for my VAMC-diagnosed ‘PTSD-Chronic.’ Although service-connection was established, effective September 1, 1995 …I did not receive my rating decisions ‘…until July, 2002!’ Therefore, a formal application, for TDIU, was ‘not’ possible until then; but …many informal applications existed in my file, and were erroneously overlooked by the examiner.

I knew nothing of any possible ‘award date,’ in order to subsequently file the TDIU claim, at that time, (September, 1995); as …my VAMC-Lyons, NJ …medical diagnosis, of PTSD-Chronic, with Unemployability, was of record when I was discharged in December, 1995. That was ‘seven years’ before I finally received my rating award!

An increase in 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 showing of continuity. The regional office should have considered my treatment records from my attending PTSD doctor, at VAMC-Lyons, NJ, including his final diagnosis of PTSD-Chronic, with Unemployability.

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

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

The multitude of communications, between me, my attorney, and the regional office …indicating my ‘acute increase in my disability,’ which should have been interpreted as informal claims for ‘total disability,’ were missed by the regional office during adjudication. The regional office was legally required to identify, and act, on informal claims for benefits. There was also proof of other disallowed claims for disability in my file at the time. It took the VA ‘seven years’ to adjudicate my claim for total disability!

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

It appears that the VA’s statutory or regulatory provisions, at the time, were incorrectly applied. My file’s documentation exist, without question, and …if the error had not been made, the outcome of awarding an original effective date for my PTSD rating award, which allowed me to make my application for TDIU, and subsequent effective date of May 30, 2002 …it would manifestly be changed to a date that’s many years earlier than it currently is.

It is also very 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 of my increased disability, (shortly after my discharge from the VAMC-Lyons, NJ PTSD program, in December, 1995), rather than vacated and/or remanded …since a remand would only serve to fulfill a procedural duty that would unnecessarily delay and burden VA Regional Office resources.

If a remand, to the VARO-Philadelphia, PA, is necessary, please assure that my ‘C-file’ is returned to the VARO-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 my daughter’s claim for retro-active dependent educational benefits. Please …do not, (as I have previously requested), under ‘any’ circumstances, send my file to the VARO-Manila!

The Regional Office examiner had, obviously, also, failed to ‘review’ my Social Security Administration ‘total disability records;’ and …all of my VA medical records. I also feel that my July, 2002 rating decision, assigning an effective date of September 1, 1995, (which I didn’t receive until ‘July, 2002’) …failed to assign the proper rating of 70%, or higher, for my PTSD, at that time. It is inextricably intertwined with the issue of my entitlement to an earlier effective date for my award of TDIU, since I had been communicating with the VARO, for years, (raising claims of CUE), asserting that the evidence compelled the VARO to grant me a rating of service-connection. All of this information was of record at the time of my rating decisions.

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

That's how I sent my statement to the VARO-Honolulu ...in May of 2010. If there's anyone, out there in HadIt.Com-land, who can offer any input ...please don't hesitate to chime-in. Thanks!

Sonny - Vietnam Veteran, 1970

[BlakePaigeStone]

I will start reading the links Berta posted. The case I remember is one in which the BVA determined that the process that allows TDIU only requires that they consider TDIU when the initial rating would be interpreted as qualifying. Such as a PTSD rating of 70%. A 30% rating does not initiate any requirement to consider TDIU. The term that the BVA used was that they were of the opinion that informal claims for TDIU were "summarily" determined to have no leagal basis based on recent court decisions. They stated that all that would be required by the veteran to advance his objection to the low rating that did not include an assessment for TDIU is to file for a higher rating.

There was a veteran here a couple years ago that kicked this subject around for a couple months. I told him in spite of how the BVA interpreted the recent court decions I would appeal the claim all the way up to a high court again.

In this case, I think that even though a rater could argue that they did not think that the release report from the hospital said "with unemployability" indicated an ongoing circumstance, such an interpretation required speculation by the rater that unemployability was a temporary level of symptoms and the fact that there was no reports indicating that the veteran was capable of returning to work between 1995 and 2002 the assignment of a 30% rating for that time period was based on a factual error. The factual error being that the interpretation of the hospital exam as not indicating an ongoing level of severity to include unemployability has no factual basis. Even though the doctor failed to state that the unemployability would likely continue into the future, unemployability was established by the hospital report until such time there was evidence to the contrary. The rater should have sought a clarification that would justify the 30% rating. Additionally, they VA should have sought the Social Security reports.

According to the GURU who taught me about VA claims you need to turn arguments based on intrepretation of the evidence and failure of the VA to honor their "duty to assist" into factual errors.

Appeal and appeal until you run out of appeals. I can see why you got a lawyer.

This is what happens when when claims take so long to adjudicate. The veteran is so glad to get a paycheck they are not real aggressive about getting the full benefit. I have seen service orgs drop the ball on this way to often. Is the Service officer so uninvolved that he could not ask you in 2002 if you have been working since 1995? Then file the appeal for the higher rating immediately.

Hang in there. I lived with a veteran who had PTSD from the war in Viet Nam. People who think that PTSD does not become severly disabling know nothing about the condition. PTSD spawns all kinds of comorbid symptoms that make employment impossible. I tried to employ the veteran who was my roommate and could not afford the material losses he was causing due to his inability to concentrate. Recently, I started telling people who want to diminish the reality of PTSD to google "Audie Murphy" and read his wikibiography.

You are right about... 'being so glad to, finally, get a paycheck, (especially since I'd been unemployed, and homeless for so long), that I was too emotionally exhausted to even consider another fight with the VA, for mu full benefit! I think that i was afraid to even mess with them again; for fear of them telling me that they'd made a mistake, and I shouldn't get the award! (smile) Seriously. In fact, my PTSD was definitely aggravated by the experience with the seven-year process.

I'd also prefer to, from personal experiences, keep my opinions ...of service organization officers, to myself. After all, my mother always told me... "if you can't say something nice about people, don't say anything at all!"

[BlakePaigeStone]

Hoppy said: " 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. "

That is what I thought too.

Then again if this was the 21 day inhouse program- did you get a month temp comp at 100% for this ?

Yes; I received the 100% disability rating. I was in the 'VAMC-Lyons, (NJ), PTSD Inpatient Program;' as ...that program was 6-weeks in-length, ending on December 29, 1995. It's where the VA doctor diagnosed me with 'PTSD-Chronic / Unemployable.' This diagnosis was entered on my final medical release report, in December of 1995.

However, I'd started-off ...in the VAMC-Philadelphia, (PA), in late August, 1995 ...for detox from substance abuse. Then, was transferred to the dual-diagnosis PTSD & Life Management Program, at the VAMC-Coatesville, (PA), which was about 8-weeks in-length. From there, I was sent to the previously-mentioned PTSD Program, at the VAMC-Lyons. So, I was hospitalized from late August, 1995 ...until late-December, 1995.