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Cue And Informal Claims?


NJ_Devil_Dog

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Just a couple of quick questions about my claim. I reopened my PTSD claim (originally denied in'95). I am trying to claim CUE because not all evidence under constructive notice was examined at the time of the original decision. (SMRs and "failure to appear for VA examination" were the only items listed) I know for certain that I went to the examination. When I filed to reopen in '05, I was awarded 30%.

I filed NOD to increase based on GAF score of 41, as well as 'possibility' of CUE because existing evidence in VA custody was not examined in '95 decision. I was increased to 50% PTSD, however the SOC now states that decision of the 'original claim' was Oct. 1996.....???? And that the evidence considered at that time was a VA examination from May 1996.......????? Can anyone help me explain why there is such a discrepancy in the date of the 'original claim'???

My second question is this.... if in '95 I was denied my PTSD claim, and following that denial I returned to the VA for outpatient treatment for PTSD, would these treatment(s) constitute an informal claim of the original claim denied in '95??? And if so, would such an in formal claim circumvent and/or substitute for a formal appeal of the '95 decision?

One last question, I requested a copy of my c-file in '05 but haven'e received it yet. Is there anyway I can find out why there is such a delay or request again? I think I'm about to sever all ties with my SO....

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  • HadIt.com Elder

I think I would just get more evidence from your own doctor to get that 50% bumped up to 70%-100%. You are close. Just swamp them with evidence that goes along with the GAF of 41. You should have gotten 100% to begin with with a GAF like that, but we know the VA moves in mysterious ways.

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Guest frank
I think I would just get more evidence from your own doctor to get that 50% bumped up to 70%-100%. You are close. Just swamp them with evidence that goes along with the GAF of 41. You should have gotten 100% to begin with with a GAF like that, but we know the VA moves in mysterious ways.
i hate to ask a dumb question but what is a gaf? frank
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Frank,

In response to your question, the GAF (Global Assesment of Functioning) is a scale that the VA uses to rate claim (esp. mental or behavioral types) I think you can find the symptomology somwhere here on Hadit, bu you can look it up online. Basically the higher the GAF score the more you're able to function; i.e. if you have a GAF between 91-100 you pretty much have no symptoms or the symptoms don't affect your ability to function. The lower the GAF score the less likely you are to function normally and/or live a normal life. A lower GAF means the symptoms affect you more and more the lower it is.

Hope that helps....

Gerald

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"When I filed to reopen in '05, I was awarded 30%" then you got 50% on the NOD?

Good work veteran!

I see what you mean-the EED is wrong- (earliest effective date)

if the evidence for the 30% was actually evidence that warranted 50% when you filed this claim- the earliest effective date should have been the re-open date- at 50% less whatever they already sent you as retro-

I would question this- actually I would send them a letter first-asking if they made an error-

-then if that does not resolve it, I would send in the formal NOD.

I would keep the CUE claim completely separate from the NOD-on this claim.

If you get the proper retro date-for the re-open- which I agree does seem completely wrong-

the CUE -if successful- will cover the other part of any potential retro-up to the re-open date-

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NJ Devil Dog,

Sounds like this is what you're looking for.

I feel like it MIGHT be a big help for you, hope so.

If it helps you get a retro - remember hadit.com has bills to pay.

carlie

38 CFR

§ 3.157 Report of examination or hospitalization as claim for increase or to reopen.

(a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of §3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report.

(Authority: 38 U.S.C. 5110(a))

(:unsure: Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. In addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling.

(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.

(Authority: 38 U.S.C. 501)

(2) Evidence from a private physician or layman. The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits.

(3) State and other institutions. When submitted by or on behalf of the veteran and entitlement is shown, date of receipt by the Department of Veterans Affairs of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals (except those described in paragraph (:D(1) of this section). These records must be authenticated by an appropriate official of the institution. Benefits will be granted if the records are adequate for rating purposes; otherwise findings will be verified by official examination. Reports received from private institutions not listed by the American Hospital Association must be certified by the Chief Medical Officer of the Department of Veterans Affairs or physician designee.

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  • HadIt.com Elder

Here is a tricky thing the VARO will do on a claim that is on appeal. Say you appeal to the DRO or the BVA and are denied. You go out and get a IMO to support your claim. If you now win your claim your effective date will be the date you submitted the IMO. Without the IMO you may never have won, but with the IMO you sacrifice your EED. That is what the VA did to me but I would not have won without the IMO. My claim had already been to the BVA and back on remand. All the other evidence was the same except a good IMO. Oh, well, I got the money and that is what counts. You never really get validation from the VA for your suffering, just a check if you are lucky.

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John- the date of the EED should still be the date of the claim- if it was continuously prosecuted-

otherwise -I see what you mean the date of the IMO might be what they use but I would challenge that if I could-

A vet does not get a SC disability the day they get an IMO or a C & P-

I cant believe how they have been using C & P dates lately for EEDs- that is a good one-

They sure come up with ways to Snooker us all!

Edited by Berta
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  • HadIt.com Elder

Berta

My claim for an increase had been in the works since 1997 and it took a trip to the BVA and was remanded back to the VARO. My increase was denied again in 2001 and I appealed again and added more evidence including an IMO from my shrink. The DAV was my VSO in this. I got 70% in 2002 up from 30%. I appealed the denial of TDIU and got that in 2003. I appealed the denial of Chapter 35 and got that in 2004. What you are saying I should have had an effective date of 1997???? The VA based the increase on my doctor's 2001 IMO and the fact I was on SSDI since April 2002. The DAV guy said I was lucky to get the 70% and not to ask for TDIU. I am glad I ignored him. Is there anything I can do about this effective date now. It was the same claim since 1997 except for me asking for TDIU.

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John- what I meant is-

if the medical evidence VA had (or constructively had -Bell V Derwinski) was appropriate for TDIU in 1997- then a CUE could recover that as retro-

I assume that your last decision was never appealed and is now final?

Even though CUE claims are based on legal error-

if the medical evidence warranted a TDIU or higher rating in 1997- they could have committed CUE by giving you the wrong rating.

Here is an example based on my husband's situation.

Three years after his death the VA awarded 100% PTSD.(1997)

They used his SSA PTSD date as the EED.(1991)

They also used his shinks report and results of 6-7 mental tests.

Let's say they awarded him only back to 1993, and used only the shrink stuff.He took these tests in August 1993. They could have said based on the MMPI, Wechsler, Hand, Trails-Mosing results-and the documentation from his doctor, the veteran was unemployable due to 100% PTSD as of Aug 1993.

Lets say they listed as evidence his SSA PTSD award yet never considered it in the determination.Also an EEOC case was listed as well as not considered and also his Voc Rehab recors.

He was then 30% from 1983 up to 1993, then 100%.

OK- say I looked at that award letter 2 years ago- that decision was final.

But I realise that the Schedule of Rating Disabilities in 38 CFR caused the VA to legally continue the 30% award without considering that, in 1991- based on the medical evidence-he was fully entitled to 100% then as well as in 1993.

I would CUE that decision.The VA, by applying the wrong criteria in 38 CFR in the old decision, had committed clear and unmistakable error.

The medical facts were already established by medical evidence. The VA's error was legal as they applied 38 CFR.

Also my SMC CUE they are deciding now- I ran that by at hadit -forget where-

Rod was 100% SC PTSD, 100% dead 1151, and 100%SC plus- to be determined by AO DMII claim and complications.(this has been decided but I dont know the decision yet)

The veteran never was awarded SMC.Final decision, never appealed, no SOC, no reason or basis.

VA case law clearly states that the veteran should have been awarded SMC back to 1992.

I filed a CUE.

The medical evidence of record clearly established that the veteran was eligible for SMC.

VA case law , OGC pres ops, 38 USC and BVA and CAVC decision support that.

The VA committed a legal error in not awarding SMC.

Hope that helps.

Established medical evidence that they had -must support the collateral attack (CUE claim)

BUT VA must have erred in using 38 CFR and their own case law and regs for a finding of CUE-(legal error)

AND the outcome must be manifestly different- more retro due the vet-

If no retro is involved- no CUE could have occurred.

Edited by Berta
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