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

[Berta]

GOOD for you Sonny.....

I got so ,much ridiculous rhetoric from the RO on my 2004 CUE claim, I almost gave up

for about a HALF of a Second!

Question:

"The fact that the Social Security Administration, (SSDI), awarded me disability ...also made no difference!"

I am sure I asked before (that quote is from a past post here you made)

is the SSDI solely for the PTSD and was VA fully aware of and did they obtain those SSA records?

You had experienced a lot of missing records when this all began, and had to ask the General Counsel to get Lyons VAMC to release medical stuff to your RO.

That is why we all have to go over the Evidence List VERY carefully when VA sends us a negative decision.

I could write a book about that......

Their omission of consideration of evidence they had or ,worse yet, their apparent lack of having it, when they SHOULD have it, is the main reason for many denials in my opinion.

In my numerous claims, it just amazed me how the most probative evidence was always missing from the decision.

However I found the missing stuff in my C file.

VA practically called me a liar regarding a very probative Peer Review they did for my FTCA case.

Not only did Regional Counsel VA informed me when the review was done, to begin to settle with me, but I ran into the doctor who wrote it, and he was surprised that not only was the FTCA not resolved but that VA had again denied my 1151 DIC claim.

The Office of Legal Medical VA claimed they had notes regarding 4 Peer Reviews on my case, but when I started to push them to release what they had, they suddenly clammed up and said they had no record of what I was talking about.

About a year and a half after all this the VA settled with me and I won the DIC claim.

The FOIA I sent to OGC (I had to wait for settlement to get their reports) didn't even mention this specific important Peer report either

.I had significant other evidence anyhow and forgot about it.

When I reopened my claim in 2003 and requested copy of my C file. the non existent Peer report was right at the bottom of the C file!

I used it for my IHD AO claim.

If VA gives me any crap on my pending issues,I will use this report for that too.It covered not only the IHD issue but also the CVA issue.

This stuff doesn't happen in a vacuum. Decisions are made at RO levels by an adjudicator as to what evidence they will actually consider and what they will ignore.

I think and hope the new NOD form might help eradicate this problem by requesting how many pages of enclosures are with the NOD.

Since I view the NOD as the first avenue of attack, I fully believe it should be prepared to answer the question of why the VA was wrong and refer to and enclosure evidence to show why.

Although the year NOD timeframe can slip by fast,

the reality is,that year also gives the claimant plenty of time to prepare a very viable NOD.

Also it is up to us to not only list our evidence in a cover letter to VA, but also to mark them by page, totaling the enclosures on the evidence list. I always add page one of 12, age 2 of 12, etc etc and put my name, address and C file number on every page.

I watch a lot of trials on TV when I can. If there has been a discovery glitch, the lawyers ,who didn't receive the discovery evidence,from the opposing party , raise all sorts of hell.

Our rights as claimants however fall far short of civil and criminal evidence laws.Sure we can appeal over missing evidence, or file a CUE if the decision went unappeled ,in the the first appeal year time frame, but this is all because someone at a RO didnt do their job in the first place or was directed not to do it right.Unlike non disabled plaintiffs in civil/criminal cases, Most VA claimants ARE disabled and can potentially get worse and die from their disabilities.

Sorry I am ranting here...no point in doing that..........VA... it is what it is.

Evidence Lists.....obviously you want to list first the most probative medical evidence you have.particularly any IMO enclosures.

Lay statements and buddy statements are usually only a corroboration of the actual medical evidence....very. important as corroboratng testimony, but

not the prime evidence ,in most cases, just the icing on the cake.

Internet printouts can often be the weakest evidence (however I have seen cases that show I am wrong)I have used them too.

BVA decisions, if they address a legal issue can be used as evidence.I have done that.

M21-1MR can be great supporting evidence if the RO decision overlooked specific guidelines in M21-1MR.

I always list as evidence and send them the exact citation from M21-1MR that proves my legal argument.

Edited August 15, 2013 by Berta

[BlakePaigeStone]

GOOD for you Sonny.....

I got so ,much ridiculous rhetoric from the RO on my 2004 CUE claim, I almost gave up

for about a HALF of a Second!

Question:

"The fact that the Social Security Administration, (SSDI), awarded me disability ...also made no difference!"

I am sure I asked before (that quote is from a past post here you made)

is the SSDI solely for the PTSD and was VA fully aware of and did they obtain those SSA records?

You had experienced a lot of missing records when this all began, and had to ask the General Counsel to get Lyons VAMC to release medical stuff to your RO.

That is why we all have to go over the Evidence List VERY carefully when VA sends us a negative decision.

I could write a book about that......

Their omission of consideration of evidence they had or ,worse yet, their apparent lack of having it, when they SHOULD have it, is the main reason for many denials in my opinion.

In my numerous claims, it just amazed me how the most probative evidence was always missing from the decision.

However I found the missing stuff in my C file.

VA practically called me a liar regarding a very probative Peer Review they did for my FTCA case.

Not only did Regional Counsel VA informed me when the review was done, to begin to settle with me, but I ran into the doctor who wrote it, and he was surprised that not only was the FTCA not resolved but that VA had again denied my 1151 DIC claim.

The Office of Legal Medical VA claimed they had notes regarding 4 Peer Reviews on my case, but when I started to push them to release what they had, they suddenly clammed up and said they had no record of what I was talking about.

About a year and a half after all this the VA settled with me and I won the DIC claim.

The FOIA I sent to OGC (I had to wait for settlement to get their reports) didn't even mention this specific important Peer report either

.I had significant other evidence anyhow and forgot about it.

When I reopened my claim in 2003 and requested copy of my C file. the non existent Peer report was right at the bottom of the C file!

I used it for my IHD AO claim.

If VA gives me any crap on my pending issues,I will use this report for that too.It covered not only the IHD issue but also the CVA issue.

This stuff doesn't happen in a vacuum. Decisions are made at RO levels by an adjudicator as to what evidence they will actually consider and what they will ignore.

I think and hope the new NOD form might help eradicate this problem by requesting how many pages of enclosures are with the NOD.

Since I view the NOD as the first avenue of attack, I fully believe it should be prepared to answer the question of why the VA was wrong and refer to and enclosure evidence to show why.

Although the year NOD timeframe can slip by fast,

the reality is,that year also gives the claimant plenty of time to prepare a very viable NOD.

Also it is up to us to not only list our evidence in a cover letter to VA, but also to mark them by page, totaling the enclosures on the evidence list. I always add page one of 12, age 2 of 12, etc etc and put my name, address and C file number on every page.

I watch a lot of trials on TV when I can. If there has been a discovery glitch, the lawyers ,who didn't receive the discovery evidence,from the opposing party , raise all sorts of hell.

Our rights as claimants however fall far short of civil and criminal evidence laws.Sure we can appeal over missing evidence, or file a CUE if the decision went unappeled ,in the the first appeal year time frame, but this is all because someone at a RO didnt do their job in the first place or was directed not to do it right.Unlike non disabled plaintiffs in civil/criminal cases, Most VA claimants ARE disabled and can potentially get worse and die from their disabilities.

Sorry I am ranting here...no point in doing that..........VA... it is what it is.

Evidence Lists.....obviously you want to list first the most probative medical evidence you have.particularly any IMO enclosures.

Lay statements and buddy statements are usually only a corroboration of the actual medical evidence....very. important as corroboratng testimony, but

not the prime evidence ,in most cases, just the icing on the cake.

Internet printouts can often be the weakest evidence (however I have seen cases that show I am wrong)I have used them too.

BVA decisions, if they address a legal issue can be used as evidence.I have done that.

M21-1MR can be great supporting evidence if the RO decision overlooked specific guidelines in M21-1MR.

I always list as evidence and send them the exact citation from M21-1MR that proves my legal argument.

Berta;

Thanks, again ...so very much, for your encouraging input. I can tell, from your posting, that you understand what I feel when I say... "never give-up!"

To answer your question, the Social Security Administration, (SSDI), award wasn't considered, as I recall, (2001 -2002), because both agencies, (SSA & VA), were processing my claim for PTSD at the very same time.

SSA / SSDI only took a-year-to-eighteen-months to process my award, whereas ...the VA took seven, (7), years! Both awards were for PTSD. In fact, I recall ...during my SSDI hearing, the judge ruled, by saying... "It was not the substance abuse that caused my PTSD; but ...the PTSD which caused my substance abuse!" Then, she ruled in my favor! My attorney told me, after we left the hearing, that... he'd never seen a case which had aspects of 'substance abuse,' awarded ...until that day!

That SSA paperwork may have been finalized after my adjudication was completed; but ...before it was approved and sent out to me. If that's the case, I can't use my SSA award as a CUE; but ...it makes no difference, anyway!

I documented each page of pertinent VAMC treatment records, from all of the various VAMCs which I had been treated. (inpatient and outpatient; medications administered, with all side-effects); and ...in-service treatment record related to PTSD symptomology. (before the term, 'PTSD' was even coined!)

I am awaiting some type of reply, from the VARO-Honolulu DRO; and ...will most-certainly notify you, via HadIt.Com ...upon receipt of the decision. Thanks, again ...for all your help.

Regards,

Sonny

[BlakePaigeStone]

Berta;

I just noticed, on my eBenefits page, that the appeal now, (as of September 12, 2013), has an 'SOC' notation in the status category.

I'm now waiting for a letter from my VARO-Honolulu; and ...will update you as soon as I get it ...and do a complete review.

Regards,

Sonny

*I was wondering if the following statement makes my case: --

After a seven-year legal battle, with the VA …about my awarded service-connection benefits, I didn’t have the mental capacity, (due to my Vietnam-related, PTSD-Chronic condition), to desire anymore contact with the VA ‘…about anything,’ period!

Even though, my ‘initial rating-decision’ was wrong; veteran failed to file an appeal; timely, or …otherwise. This was due to ‘PTSD-related avoidance issues.’ Therefore… I need to develop my medical records from my 1995 VAMC hospitalizations, in ‘…VAMC-Coatesville, and VAMC-Lyons,’ showing ‘mental’ issues which interfered with thinking ability …to appeal.

I also need to show what CUE was made by the VARO-Philadelphia, in assigning a 30% initial rating-decision, for the period from September, 1995 …to May, 2002. My initial should have been rated at a minimum of 70%; and …my TDIU subsequently awarded shortly thereafter! (I was diagnosed, after discharge from the VAMC-Lyons, inpatient PTSD program …with ‘PTSD-Chronic w/Unemployability’ …in December, 1995)

After seven years, an award of 30% service-connection was granted, in July, 2002 …for period in question: ‘September, 1995 …to May, 2002.’ Initial award should have been… ‘70% w/TDIU.’ (Awarded May 30, 2002)

This is the Supreme Court decision in Henderson:

http://vetlawyers.com/vetblog/index.php/2011/03/united-states-v-henderson-562-u-s-___-2011/

I searched the BVA under “missed deadline” and found this case:

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

In Part:

“In Barrett v. Principi, 363, F.3d 1316 (Fed. Cir. 2004), the U.S. Court of Appeals for the Federal Circuit held that, for the purposes of determining whether a claimant timely appealed to that particular court, equitable tolling is available where a veteran is able to show that the failure to file was the direct result of a mental illness that rendered him incapable of rational thought or deliberate decision making, or incapable of handling his own affairs or unable to function in society. Id. At 1321.”

Edited September 30, 2013 by BlakePaigeStone

[BlakePaigeStone]

HadIt.Com --

What is an average waiting period, for a 'S.O.C.' mailing ...after that entry has been made, on the eBenefits website? ('claim progress section') -- Date of the change, ('DRO'), was September 12, 2013.

Is that the date which the DRO started reviewing one's case/appeal?

Edited September 30, 2013 by BlakePaigeStone

[john999]

As soon as you filed your NOD you should have hired a lawyer. The longer you wait to hire a legal eagle who knows what they are doing the more F'ed up your claim is going to become. I have been waiting 7 years "With" a lawyer steering the boat away from the rocks. I predict at current rate your DRO will be denied and then if you persist in going it alone to BVA you will end up in "No Man's Land" for about ten years.