ptsd Cue Initial Rating Decision

[BlakePaigeStone]

I need opinions about the 'CUE' of my initial assignment of 30%; which should have been established at a much higher initial percentage, due to 1995 VAMC diagnosis of 'PTSD-Chronic w/Unemployability.'

CUE was made when initial rating percentage was assigned ...in 2002.

My claim decision reads, in part:

...unemployability was granted effective May 30, 2002, the date your claim for this benefit

was received.

On your claim received on June 1, 2010, you reported that the effective date for

individual unemployability was a clear and unmistakable error because although you

filed a claim for individual unemployability on May 30, 2002, you were diagnosed with

'PTSD-Chronic, with Unemployability' prior to this date; and ...that you were unable to file a

claim for individual unemployability before you were service connected for PTSD in

Rating Decision dated July 26,2002.

*There was a mistake in the VARO's understanding of my claim. I was seeking 'CUE' in the 2002 assignment of my initial rating percentage ...not my TDIU effective date; since ...I'd already been diagnosed by VAMC doctors, in December of 1995 ...with 'PTSD-Chronic w/Unemployability.'

The claim decision continues to read, in part:

Although service connection for PTSD was granted effective September 1, 1995, the

evidence of record doesn't show you were unable to obtain or retain a gainful occupation

due to your PTSD, which, at the time, was evaluated at 30% disabling.

*(What about the VA doctor's 1995 diagnosis of 'PTSD-Chronic w/Unemployability?!')

Decision continues, in part:

Individual unemployability may be granted where there is one service-connected

disability evaluated as 60 percent disabling, or two or more service-connected

disabilities, one of which is 40 percent, with a combined evaluation of 70 percent or

more. The earliest effective date we may assign for entitlement to individual

unemployability is May 30, 2002, because this is the date you were found to be

unemployable due to your single service-connected disability of PTSD evaluated as 70

percent disabling, as well as the date your claim for this benefit was received.

Now, doesn't the logic, here, seem wrong/erroneous?! I mean, I couldn't apply for any unemployability until I was service-connected! When service connection was established, in 2002, the retro-active percentage, of 30%, (which was a 'CUE'), went back to the time of my VA diagnosis of 'PTSD-Chronic w/Unemployability!' That VAMC diagnosis, and clinical treatment records, confirm a minimum of a 70% initial rating of my condition!

It feels, as though, the VA and I, are just... 'going-around-in-circles' on this issue ...doesn't it?!

There are also the two issues of... 'existing informal claims' submitted to my claims-file, during the 7-year adjudication period ...which confirm my increased condition of PTSD, (between 1995 and 2002), beyond the 30% rating-level; and ...the fact that I was unable to appeal the 30% award ...in a timely manner.

Check-out:

http://www.va.gov/vetapp07/Files3/0725309.txt

I have already, (May, 2011), submitted my NOD; and ...requested a DRO review of my claim for a retro-active increase, (to 70%), of my initial rating percentage of 30%.

Any, and all, input is welcome.

Sonny

[Testvet]

The appeal of the February 2003 determination of an effective

date of August 2, 2000 for TDIU is dismissed.

The case you linked to shows the veterans appeal denied and why staged ratings suck but if you missed the filing deadline on the initial 30% award and are now attempting to try and get the extra 7 years of back pay from 95-02 I see a denial from the BVA basically for the same reasons this veteran was denied you were not deemed incompetent in 1995 you had to file an appeal within 12 months of the 1995 award date you are beating your head against a wall if you did not file a NOD before 1996 or within a year of your award letter was dated

Have you discussed this case with a Lawyer that KNOWS VA law and let them decide if you have any chance of winning they won't take it if there is no possibility of winning it because if they don't win then they don't get paid by law they are restricted to 20%

good luck but I just don't see how you win this

[BlakePaigeStone]

Testvet;

First of all, I must clarify the fact that... I am not seeking a determination of an effective date for TDIU; as ...I only seek to have my initial rating percentage raised/increased to the correct percentage that's reflected from my 1995 VAMC clinical diagnosis, & clinical treatment records. Assigned rating percentage, of 30%, in 2002, was a 'blatant case of C.U.E.' ...by the VARO adjudication department.

I understand your position completely; however, it is my contention that the VARO adjudication department, which decided my 30% rating 'in 2002' ...made a 'C.U.E.' by not considering the 1995 VAMC clinical treatment reports, and 1995 VA doctor's diagnosis.

My 'PTSD-Chronic w/Unemployability' condition had certainly worsened beyond 30% ...by the time of my award-letter was dated, in July of 2002. In fact, my PTSD condition was well beyond 30%, in order to even be diagnosed, in 1995 '...as unemployable!'

If that initial rating percentage 'C.U.E.' had not occurred, the need to file an appeal for the increased initial rating ...would not have existed!

As far as the appeal time-limit, there are 'informal claims, of record;' as ...I am currently expecting the balance of my 1,500+ page copy of my claims-file, (after my recent, August 2, 2011 payment), shortly; as ...I recall various documents of pertinent correspondence to the VARO ...from my former attorney, in the 1990s.

I'm also seeking input ...concerning the choosing of 'new' legal representation.

Thanks for your valued opinion.

Sonny

The appeal of the February 2003 determination of an effective

date of August 2, 2000 for TDIU is dismissed.

The case you linked to shows the veterans appeal denied and why staged ratings suck but if you missed the filing deadline on the initial 30% award and are now attempting to try and get the extra 7 years of back pay from 95-02 I see a denial from the BVA basically for the same reasons this veteran was denied you were not deemed incompetent in 1995 you had to file an appeal within 12 months of the 1995 award date you are beating your head against a wall if you did not file a NOD before 1996 or within a year of your award letter was dated

Have you discussed this case with a Lawyer that KNOWS VA law and let them decide if you have any chance of winning they won't take it if there is no possibility of winning it because if they don't win then they don't get paid by law they are restricted to 20%

good luck but I just don't see how you win this

Edited August 18, 2011 by BlakePaigeStone

[Berta]

"I recall various documents of pertinent correspondence to the VARO ...from my former attorney, in the 1990s."

I am surprised you even had an attorney representing you then- was this claim at the BVA?

"I'm also seeking input ...concerning the choosing of 'new' legal representation."

The lawyers for vets regs involve an NOD filed on or after June 21, 2007.

Have you worked at all since 1995 ?

Did the doctor's report specifically say the unemployability was due to PTSD?

Did this report derive from an inhouse 21 day PTSD program you were in?

All vets in the 21 day Inhouse program are eligible for 100% for the entire month in the program if hospitalized this way and,in essense, they are unemloyed due to PTSD for this month of comp.

I certainly agree that this needs a lawyer's input.

There are numerous lawyers on the net who represent veterans.

We have some BVA CUE awards here in the CUE forum.

Any lawyer who repped the vet for these winning CUEs might be the best ones to try.

[Berta]

forgot to add-I dont know how much time you have to respond to the VARO letter but the claim has to be explained to them like they are 10 years old- as they have misinterpreted it.

It would be great if you could get a lawyer to respond to that letter in time- but if not-I sure wouldn't let a response deadline go by without explaining what you want and how they legally committed a CUE.

I have had 2 CUE claims pending since July 2004 at the VARO level.Their responses have been comletely inadequate (some are ridiculous)and they have yet to read and consider all of the legal evidence I sent them for these claims.

They even made up a reg to attempt to deny the claims.

I think they deliberately try to confound and confuse CUE issues so they dont have to really read the legal evidence and then make a decision.

My legal evidence came from Office of General Counsel pres ops, M21-1MR and 38 CFR/USc itself.

These claims were pulled out of BVA transfer last year and is now a Nehmer CUE claim.I dont have a lawyer repping me but I sure feel you should start contacting lawyers and make sure the VARO characterizes the claim correctly.

There is a lot of CUE info here at hadit.

Edited August 18, 2011 by Berta

[john999]

Sonny

Get a VA lawyer. I think you may have a CUE, but the VA will just hit you with everything including the kitchen sink. I have a CUE and I got a lawyer, and yet it has taken almost 6 years. Unless the CUE is almost a clerical error you will need help from a person who is not emotionally involved with his claim. I can almost swear that you won't win at the DRO.

[Philip Rogers]

I personally think you might want to consider 38 CFR 4.16C, which was in effect, then, and wasn't dropped until Oct or Nov, of 1996. I believe you have a CUE. jmo

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