ptsd Cue And Informal Claims?

[NJ_Devil_Dog]

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....

[Berta]

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 July 4, 2006 by Berta

[john999]

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.

[Berta]

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 July 5, 2006 by Berta