ptsd Effective Date

[Papa]

The following came from the Nehmer Training guide, page 17. While I'm not sure how to post this, I will not know unless I do post. Back in 1973, less than a year after my discharge I went to the American Legion and filed a claim for Nerves and emotional issues. At the time I was shaking and had terrible mental problems. Of course, the VA denied me, and I do and can not find any paper work where they inform you of your right to appeal. They did not suggest a C&P, and I was to naive. The AL just told me to go home and live my life the best I could. Currently, I'm awaiting the effective date for my Parkinson's and the evaluation of my PTSD. Realizing that this would not be easy, would this be a battle worth waging? My point is that the disability arose in 1973.

"The effective date for retroactive claims must be one of the following dates:

• The later of the following:

o The date VA received the claim, or a date prior to September 25, 1985, if the claim was pending or on appeal on September 25, 1985, or

o The date the disability arose

• The day following the date of the class member's separation from active service, if filed within one year from the date of separation"

Papa

[broncovet]

I found Berta's link to "footnote one"

I will attempt to summarize "footnote one" in ENGLISH:

When the VA awards benefits, they enter diagnostic codes. They dont always do those right. Sometimes, later, when they have a condition that is presumptive, the VA goes back and awards benefits to Vets who deserve them. That is, they were denied earlier, but now these condtions are "presumptive". However, when the wrong diagnostic codes were put on in the initial decision, then nobody knows that you are a "Nehmer" Vet, so you dont get the retro for the presumptives. When you complain about this, the VA is supposed to fix it. That is, I think you can file a CUE that they did not enter the correct diagnostic codes and pay you your retro benefits, because they were unaware because THEY MADE A MISTAKE AND CODED YOU WRONG.

Is that about right, Berta?

[Papa]

Berta,

I was mistaken about the appeal. But, back then, if it was not part of your records, it did not matter. I have attached the history, and if I forgot to delete any personal information that is alright, the wife has spent all the money.

Papa

Yes-I wondered that too- if they gave you full appeal rights in the older decision.

Are you able to scan and attach the older decision here? (Cover the personal stuff)

[Berta]

They did give you appeal rights and there was mention of inservice psychiatric consult but no diagnosis.

I am not sure at all if that older decision could warrant a better EED for your PTSD claim.

Retro EEDs usually depend on continuous evidence of disability and treatment for it.Otherwise there is nothing to rate.

Broncovet said:

"I think you can file a CUE that they did not enter the correct diagnostic codes and pay you your retro benefits, because they were unaware because THEY MADE A MISTAKE AND CODED YOU WRONG"

Many CUE claims have succeeded that way BUT

the wrong diagnostic code, once corrected still has to reveal a ratable disability that was due to service.

Part of my pending CUE claim ( 7 years at RO level) involves wrong diagnostic codes for my husband's Section1151 and direct SC Cerebral Vascular accident. The rating was wrong too. It should become 100% under my Nehmer claim.

As Rick Spataro from NVLSP made the point to me as an example in that link -

"The VA issued a rating decision on April 1, 1991, but does not code IHD (list IHD as “NSC” on the code sheet of the rating decision). Under footnote 1, since the condition should have been coded in the April 1, 1991 decision, the May 1, 1990 claim should be considered a claim for SC for IHD under Nehmer."

I am Footnote One because although I proved my husband's IHD was malpracticed on (FTCA/1151 ) and my award last year made his IHD completely service connected neither my award letter nor any past 1151/FTCA documents ever listed the IHD with any diagnostic code or percentage.

It caused his death as VA has admitted to in all 3 claims above so I CUed that too for a rating that reveals 6 years of IHD untreated that caused his death-that too should be given a diagnostic code and rated 100% SC under the Nehmer claim I have pending.

I used M1-1MR in addition to considerable other evidence to prove they committed CUE.

I don't have the citation handy (sent the M21-=1MR part to the VA as evidence - but basically the VA must code and rate any disability they are aware of whether it is SC or NSC.

They have failed to code and rate his diabetes as well- awarded as SC due to AO last year.I haven't cued that yet as I think the Nehmer award will cover that as well as render my CUE claims moot.

[broncovet]

I think I get it Berta. It isnt enough for the diagnostic codes to be wrong to get a CUE, the "wrongness" of the DC's has to be "material" wrongness of DC codes. In other words if they coded 5605 when they mean 5606, its still the same percentage. But if they forgot 5603, and that 5603 meant you qualified for Nehmer, then that is material wrongness.

Included in the CUE regs, the error has to be "outcome determinative". Just because we can prove they did not dot the I, that does not mean it would affect the outcome.

[Papa]

Thank you all for these posts. It really helped.

Papa

[john999]

My cue claim is sort of similar to yours Papa. I got a 10% rating in 1973 for nerves. I never got appeal rights, C&P, or any of that jazz. I did find that the VA did not consider my evidence from my doctor. They just used what there doctor said. I filed a CUE based on this exclusion of my evidence. You might find something like this in your decision. I have a lawyer working on this CUE. My original decision was just 2 pages. In 1973 there were two schedules for mental disorders: One for neurotic disorders and one for psychotic disorders. If they used the wrong schedule to deny you that would be a CUE, for instance. This is the kind of stuff you need to find in your denial.