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

[BlakePaigeStone]

Thanks for your input ...Berta.

The attorney was my cousin, (informal representation) ...whom I asked to offer any input that he could. I was thinking that some of his 'Law Office' letterhead, which explained my deteriorating PTSD condition in the mid-to-late 1990s, (VAMC-Lyons PTSD 6-week inpatient program; substance abuse; homelessness; isolation from immediate-family; etc.), might help to resolve my claim's '...seven years of delays!'

I filed my 'NOD, with DRO request,' on May 14, 2011.

My original 1995 claim had gone to BVA ...years before; and ...I had to, eventually, petition the CAVC, with a 'Writ of Mandamus.' I had my rating, (including my current '70%/TDIU'), within 30-days, (2002), of filing that Writ of Mandamus! Go figure!

No, I haven't worked since 1994. I ended-up in the VAMC-Philadelphia ...due to a host of PTSD-related issues. That's when I found-out what my condition really had been all-those-years.

I was referred to, and accepted into, the following two programs: The 4-week Life-Management program, at VAMC-Coatesville; and The 6-week PTSD program, at VAMC-Lyons. (Finally diagnosed, on December 28, 1995 ...with 'PTSD-Chronic w/Unemployability')

Yes, the VA doctor's clinical report stated that my diagnosis of unemployability was due to my PTSD. I was awarded the 'temporary' 100% ...while hospitalized in 1995.

Thanks for the 'CUE forum lawyers information.'

Regards,

Sonny

"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.

[BlakePaigeStone]

Thanks again ...Berta.

I've already responded with that letter ...which I wrote so a '10-year old' could understand that I was appealing for a retro-active increase of my initial rating, for the period from September, 1995 ...to the time of my 70%/TDIU rating-award; and ...not seeking an earlier effective date for my TDIU.

My 'CUE' appeal seems to confuse the VA, since 'all' of my ratings were established, retro-actively, at the same time ...on the very same day, in July, 2002.

I currently seeking an attorney; and ...I plan to 'stay-on-top-of' this CUE appeal! I'll keep all of HadIt.com informed ...as things develop.

Regards,

Sonny

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.

[BlakePaigeStone]

Thanks ...John999.

I'm in the process of locating legal representation '...now.'

I already know that it's going to be 'an uphill fight ...to-the-death,' on this one.

Regards,

Sonny

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.

[Testvet]

http://www.vetadvocates.com/directory.html

all of these lawyers KNOW VA law for most if not all of them it is what they specialize in I used one here in SC and I won a CAD claim everyone kept telling me I couldn't win they also are able to call the great VA lawyers to ask for help on what to do, like Ken Carpenter, Robert Walsh etc they all help each other and they have many meetings each year for continuing education seminars remember VA lawyers do not have to be in your state they can live anywhere and still be your lawyer good luck Mike

[carlie]

In regards to pr's last post - here's an early 90's BVA case that addresses 38 CFR 4.16c.

http://www.va.gov/vetapp94/files2/9414662.txt

"Here, because the veteran's only compensable service-connected

disability is bipolar disorder with features of PTSD, rated

70 percent disabling, he is not entitled to a total rating based

on individual unemployability under 38 C.F.R. § 4.16(a) (1993)

because 38 C.F.R. § 4.16© provides that when a service-

connected psychiatric disorder rated 70 percent disabling

precludes substantially gainful employment, a 100 percent

schedular evaluation is to be assigned rather than a total

rating based on individual unemployability. Thus, section

4.16© produces the same effect for unemployable, mentally

disabled veterans as section 4.16(a) does for other unemployable

disabled veterans, but by different methods. Section 4.16(a)

assigns total disability where the schedular rating is less than

100 percent and subsection © increases the schedular rating to

100 percent (hence, assigning total disability) where the

schedular rating is at least 70 percent for a psychiatric

disorder and the veteran is unemployable. Swan v. Derwinski, 1

Vet. App. 20, 22 (1990). In other words, in this case, a 100

percent evaluation may be assigned either under the schedular

rating criteria, on an extraschedular basis or under 38 C.F.R.

§ 4.16©.

Although in a case such as presented here 38 C.F.R. § 4.16©

precludes a schedular total rating based on individual

unemployability, consideration must also be given to whether the

veteran is entitled to a total rating based on individual

unemployability on an extraschedular basis because of the

combined impact of 38 C.F.R. §§ 3.321(b)(1) and 4.16(b) which,

together, provide that where there are exceptional or unusual

factors an extraschedular total rating may be assigned. In such

a case, the RO should determine whether to submit the case to

the VA Director of Compensation and Pension Service. Where

there are no exceptional or unusual factors, the failure to

address 38 C.F.R. §§ 3.321(b)(1) and 4.16(b) is harmless error.

Tripp v. Derwinski, 3 Vet.App. 173, 176 (1992) and Fisher v.

Principi, 4 Vet.App. 57, 59-60 (1993).

In this case, the RO has not considered or applied the provisions

of 38 C.F.R. § 4.16© or the combined effect of sections

3.321(b)(1) and 4.16(b). To preclude prejudice to the veteran in

not being afforded the full benefits of procedural safeguards,

before addressing a matter that the RO has not adjudicated, the

Board must first address the procedural concerns elaborated in VA

O.G.C. Prec. Op. No. 6-92 (March 6, 1992) and 16-92 (July 24,

1992) and Bernard v. Brown, 4 Vet.App. 384, 393 (1993).

Cumulatively, these precedent opinions provide that the RO does

not have to cite nor trace the language of applicable statutes or

regulations in a rating decision or SOC and that there is not

necessarily error in the Board's addressing matters not considered

by the RO but addressed de novo on appeal, regardless of whether

the argument asserted is of a legal or factual nature. An

exception would exist when additional factual development is

required to assess the validity of a claim or assertion but this

is not the case here Indeed, it is the Board's duty to consider

and apply any possibly applicable statute, regulation or Court

analysis, even if not raised by the claimant or considered by the

RO. See Smith v. Derwinski, 2 Vet.App. 137, 140 (1992); Payne v.

Derwinski, 1 Vet.App. 85, 87 (1990); Schafrath v. Derwinski, 1

Vet.App. 589 (1991)."

[BlakePaigeStone]

Thanks ...Testvet;

I'm on it; and ...will keep everyone posted on my prpgress/experience.

Sonny

http://www.vetadvoca.../directory.html

all of these lawyers KNOW VA law for most if not all of them it is what they specialize in I used one here in SC and I won a CAD claim everyone kept telling me I couldn't win they also are able to call the great VA lawyers to ask for help on what to do, like Ken Carpenter, Robert Walsh etc they all help each other and they have many meetings each year for continuing education seminars remember VA lawyers do not have to be in your state they can live anywhere and still be your lawyer good luck Mike