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!

[john999]

Once you have filed the CUE claim all the VA has to do is just say that there was no CUE thus claim denied. Then you have to appeal and fight it out over the rules governing a CUE claim. If they violated duty to assist in the worst way possible that is not a CUE. CUE is not like a normal claim with benefit of doubt, duty to assist, etc. It is based only on everything that was before or should have been before the rater when the error was made. So if you told them about VA medical records where the doctor said "PTSD/Unemployable" that should have been before the rater. According to what I have read in Veteran's Benefits Manual you had an inferred claim for TDIU. That does not mean you would have won it, but the VA should have considered it and officially rejected it with reasons and basis back in 1995 when you were first rated. The VA had evidence that you were unemployable and they ignored it. If you had filed an appeal then I think you would have won, but now you are under CUE rules. That is another kettle of fish. Much harder after the fact because as I said before even if the VA admits they made an error they may fall back on the fact you were only rated 30%. If the VA had all the evidence before them and only rated you 30% that is a problem. If they did not have that doctor's evidence about the PTSD/Unemployable before them that would be very different because how could they rate you only 30% if you are unemployable. That would be closer to 100%. That would be an error I think.

[BlakePaigeStone]

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

pr

PR;

Thanks for the input; and ...I must say that former U.S. Senator Arlen Specter's office, in Philadelphia, PA was instrumental in getting my claim some attention, back in 2000. I also, currently, utilize my Hawaii U.S. Senator, Daniel K. Akaka when I need to stimulate some form of response from my VARO-Honolulu.

It has, however, been my experience, that... 'this strategy can add an extra step in the process, and ...require more time-consuming energy from the rating/adjudication personnel.' Maybe I'm wrong, but ...I prefer to get my congressional representatives involved, as a last resort.

Anyone else have any input on the subject?

It certainly does has its uses ...though. Thanks ...again, for your input.

[BlakePaigeStone]

Once you have filed the CUE claim all the VA has to do is just say that there was no CUE thus claim denied. Then you have to appeal and fight it out over the rules governing a CUE claim. If they violated duty to assist in the worst way possible that is not a CUE. CUE is not like a normal claim with benefit of doubt, duty to assist, etc. It is based only on everything that was before or should have been before the rater when the error was made. So if you told them about VA medical records where the doctor said "PTSD/Unemployable" that should have been before the rater. According to what I have read in Veteran's Benefits Manual you had an inferred claim for TDIU. That does not mean you would have won it, but the VA should have considered it and officially rejected it with reasons and basis back in 1995 when you were first rated. The VA had evidence that you were unemployable and they ignored it. If you had filed an appeal then I think you would have won, but now you are under CUE rules. That is another kettle of fish. Much harder after the fact because as I said before even if the VA admits they made an error they may fall back on the fact you were only rated 30%. If the VA had all the evidence before them and only rated you 30% that is a problem. If they did not have that doctor's evidence about the PTSD/Unemployable before them that would be very different because how could they rate you only 30% if you are unemployable. That would be closer to 100%. That would be an error I think.

Well, my biggest mistake was allowing more than one year to pass without appealing the original decision/award! That fact, automatically, pigeon-holes me into the CUE arena. You're right about the 'restrictions,' it imposes upon me, at this juncture.

I recall my 'mental state' when I first got word of my award, in 2002; and ...the thought of 'any' type of appeal ...then, after seven years of fighting, just took all the oxygen out of me! Oh, how I wish I'd had a different perspective. One other thing that I learned, back then, is... 'every VARO will end-up with a different result/decision.' Each VARO had to start their own adjudication-process, 'from the start;' and ...wouldn't accept any work performed by another VARO that had worked on my claim. Maybe I should have let my claims folder stay in the VARO-Newark ...huh?! Oh well, that was then; and ...this is now!

I'm looking to my 'future' options now; and ...getting mentally prepared for a long-term appeal, if necessary. I certainly hope it won't go down that road ...though. Thanks, again, for all of your input.

[Hoppy]

Blake,

You are taking some hits to the head. I thought it was my post that brought back the old memories. I have taken to many hits to the head. I put on the form when I went into the military that I had a long history of childhood head injuries.

Bronco, Blake any anybody else with the time to read this,

Bronco, I was wondering when you were going to find this thread.

I guess we are trying to establish an open un-adjudicated claim for TDIU based on the fact that the record reasonably raises the issue of unemployability. Or, that the VA failed to properly apply the law with evidence of record at the time of the original decision to justify unemployability. These TDIU claims do confuse me at times, especially when the courts keep interpreting things differently.

"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."

I don't mean to pin you to the wall, but you know me by now. I would feel a lot better if we found some BVA cases where telling a doctor that you were unemployed was capable of establishing an informal claim.

What happened on your claim? I actually keep copies of everything I post on hadit and found reference to the fact that this was the basis of your claim. Did they determine you had an open un-adjudicated claim? This did not work to prevail on a claim for TDIU (see below). I guess the question is whether or not is raises the question of unemployability which would require an investigation of unemployability. This is also a question of whether this is failure to apply the law or failure in the duty to assist.

www.va.gov/vetapp09/files3/0922239.txt

Further, the United States Court of Appeals for Veterans Claims (Court)

has stated that in order for a veteran to prevail on a claim

for a TDIU, the record must reflect some factor that takes

his case outside of the norm. The sole fact that a claimant

is unemployed or has difficulty obtaining employment is not

enough. A high rating in itself is a recognition that the

impairment makes it difficult to obtain and keep employment.

I am not sure the informal TDIU claim applies to a staged rating. This is what needs to be investigated. I have a vague recollection that in a case where they make a low ball rating and then later award TDIU that this technically resolves and closes any previously open claims for an increased rating including TDIU. The fact that he was given a staged rating all in one decision that resulted in a final rating including TDIU could have the potential to have closed the informal claim for TDIU. As such an appeal of the 30% part of the staged rating should have been filed.

I am basically trying to figure out a way to determine that they failed to properly apply the law or the rating schedule. He was given a temporary total disability then they took it away even though the hospital discharge exam stated unemployability. Hopefully there is no C&P exam that said he was capable of working?

It does not sound like Blake submitted much evidence and the only doctors statement that he remembers is that the hospital report had the phrase "PTSD w/unemployability" noted. I really think Blake needs to get all the records and re-read them to see if he can find more.

I also agree that if there was no medical evidence against the assignment of a higher rating, which may very likely be in the file from the C&P examiner who said he did not even have PTSD, that the mere reference to "PTSD w/unemployability" that was made by the doctor on the hospital report not only establishes an informal claim it establishes unemployability until such time there is evidence in the file that he was able to return to work. Thus, they did not properly apply the rating schedule and the law. The evidence of record clearly establishes that he was totally disabled and they took away this rating without giving proper consideration to the law. Without a medical opinion that the temporary total disability had resolved, where are the distinct time periods showing different levels of disability (see below)?

In cases in which a claim for a higher initial rating stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate when the factual findings show distinct time periods during which the service-connected disability exhibits symptoms that would warrant different ratings for each distinct period. I asked Blake in my first response to post some of the logic from the original denial. Until we see more from the VA's side we are involved in what is known as conjecture.

Edited May 9, 2011 by Hoppy

[BlakePaigeStone]

Blake,

You are taking some hits to the head. I thought it was my post that brought back the old memories. I have taken to many hits to the head. I put on the form when I went into the military that I had a long history of childhood head injuries.

Bronco, Blake any anybody else with the time to read this,

Bronco, I was wondering when you were going to find this thread.

I guess we are trying to establish an open un-adjudicated claim for TDIU based on the fact that the record reasonably raises the issue of unemployability. Or, that the VA failed to properly apply the law with evidence of record at the time of the original decision to justify unemployability. These TDIU claims do confuse me at times, especially when the courts keep interpreting things differently.

"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."

I don't mean to pin you to the wall, but you know me by now. I would feel a lot better if we found some BVA cases where telling a doctor that you were unemployed was capable of establishing an informal claim.

What happened on your claim?

I won't know anything until i can call my DAV office, at the VARO-Honolulu; which will be at 2am, Tuesday, my time-zone. That'll be 8am, Monday, in Hawaii; and 2pm, Monday, on the U.S. east-coast. I'll post the results as soon as I can get ahold of someone at my DAV office. It's been my experience that I'll end-up leaving a voice-mail ...which goes unanswered most of the time. I'll just have to keep calling ...I guess.

I actually keep copies of everything I post on hadit and found reference to the fact that this was the basis of your claim. Did they determine you had an open un-adjudicated claim? This did not work to prevail on a claim for TDIU (see below). I guess the question is whether or not is raises the question of unemployability which would require an investigation of unemployability. This is also a question of whether this is failure to apply the law or failure in the duty to assist.

www.va.gov/vetapp09/files3/0922239.txt

Further, the United States Court of Appeals for Veterans Claims (Court)

has stated that in order for a veteran to prevail on a claim

for a TDIU, the record must reflect some factor that takes

his case outside of the norm. The sole fact that a claimant

is unemployed or has difficulty obtaining employment is not

enough. A high rating in itself is a recognition that the

impairment makes it difficult to obtain and keep employment.

I am not sure the informal TDIU claim applies to a staged rating. This is what needs to be investigated. I have a vague recollection that in a case where they make a low ball rating and then later award TDIU that this technically resolves and closes any previously open claims for an increased rating including TDIU. The fact that he was given a staged rating all in one decision that resulted in a final rating including TDIU could have the potential to have closed the informal claim for TDIU. As such an appeal of the 30% part of the staged rating should have been filed.

I am basically trying to figure out a way to determine that they failed to properly apply the law or the rating schedule. He was given a temporary total disability then they took it away even though the hospital discharge exam stated unemployability. Hopefully there is no C&P exam that said he was capable of working?

It does not sound like Blake submitted much evidence and the only doctors statement that he remembers is that the hospital report had the phrase "PTSD w/unemployability" noted. I really think Blake needs to get all the records and re-read them to see if he can find more.

I agree. I need my C-file as soon as possible! I'm going to ask the DAV office to scan & email me the decision, if possible.

I also agree that if there was no medical evidence against the assignment of a higher rating, which may very likely be in the file from the C&P examiner who said he did not even have PTSD, that the mere reference to "PTSD w/unemployability" that was made by the doctor on the hospital report not only establishes an informal claim it establishes unemployability until such time there is evidence in the file that he was able to return to work. Thus, they did not properly apply the rating schedule and the law. The evidence of record clearly establishes that he was totally disabled and they took away this rating without giving proper consideration to the law. Without a medical opinion that the temporary total disability had resolved, where are the distinct time periods showing different levels of disability (see below)?

In cases in which a claim for a higher initial rating stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate when the factual findings show distinct time periods during which the service-connected disability exhibits symptoms that would warrant different ratings for each distinct period. I asked Blake in my first response to post some of the logic from the original denial.

My original denial(s), and their main arguments, were due to the fact that... 'the VA could not confirm my stressor(s).'

In fact, 'none' of the three, (3), VAROs ...that adjudicated my claim, (over seven years), ever found the stressor(s). "I did!" I had to go to the 'Archives II, in College Park, MD' to get the proof. Once I submitted it, the VARO had no choice. All those years, and ...they hadn't found what took me 'less-than-an-hour' to locate! I found so much proof, that I just quit at their closing-time, so I could catch the train back to Philadelphia, PA.

Until we see more from the VA's side we are involved in what is known as conjecture.

[Stretch]

Blake,

I got my Senator and Congressman involved. My congressman's vet rep even found out some relevant information for my claims as well as getting all of my ships logs. Seems it did slow the claims down some. Mine was an unusual set of circumstances, and I did win most all claims so far. The slow down was necessary. I could hardly believe the congressional vets rep found things right away just by looking at the SM records. He found things that I didn't even see.