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]

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/ve...es2/9414662.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

Thanks for your input ...Carlie; I'll be reading the links ...in detail. In the meantime. could you say that... The showing of a ‘chronic’ condition/ in my diagnoseddisease/condition, that is accompanied by a diagnosis, (VAMC-Lyons, NJ – December,1995), establishes that there is no requirement of evidentiary showing ofcontinuity. The regional office should have considered my treatment recordsfrom my attending PTSD doctor, at VAMC-Lyons, NJ, including his finaldiagnosis of PTSD-Chronic, with Unemployability ...as proof of my increased disability for initial adjudication rating?

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)."

[broncovet]

Blake

It would appear, based upon your posts, that the best "legal theory" for you to persue is the failure of the VARO to consider your claim of IU which is "reasonably raised" by the record. The VA has a policy of rating Veterans IU who are unable to maintain substantial gainful employment. It would appear that your doctors statements "reasonably raised" the issue of IU. The VA often ignores claims then the courts call them "deemed denied". YOur initial decision appears to have "deemed denied" your claim for IU. This means you have to appeal it in a year or it is final. Now, more recent cases have said that you have to be able to read the decision and reasonably be able to conclude that your claim for IU has been denied. This may not be the case, thus, you claim for IU was not adjuticated and is pending.

I agree with others that an attorney is indicated...you need one experienced in VA law..NOT a divorce lawyer. He wont help you.

You want to go through your claim file with a fine tooth comb. Remember, there are 3 criteria for an Informal claim: It has to be in writing, it has to specify the benefit sought, and the Veteran has to show intent to apply for one or more benefits. The fact that you are unemployed does not necessarily mean that you are applying for TDIU. For example, your illness could be preventing employment but you could well be recovering and intend to go back to work after recovery from your illness. However, the VA is required to assume the Veteran is seeking the max benefit, and, this would include TDIU if the Veteran tells his doc about unemployability.

Your case is somewhat similar to mine. You applied for benefits, telling your VA that you are unemployed. The VA completely ignores the unemployed part and low balls you at 30 percent. Like you, I also filed a Writ that got things going. It would probably help if you would post the VA's response to the Writ. In my case the judge ordered the VA to respond to my complaints in the Writ. The VSCM testified in regard to my complaints at the writ. Like you, I was awarded benefits after the Writ, but not retroactive to when I applied.

And, like you, I am seeking an EED, based upon the VA's failure to adjuticate a reasonably raised claim for IU.

[broncovet]

Blake

I would add:

Did both the VARO and the BVA make the same mistake, that is, fail to adjuticate your IU claim? The reason I ask, is this is "smelling" a lot like you are a victim of shreddding to me. You see, how is the VA going to say that neither the VARO, nor the DRO, nor the BVA judge could read that you were unemployed? All 3 of these adjuticators, plus their helpers were not able to read the docs statement? This smells like the reason is because the VA shredded your evidence. I can understand one adjuticator "overlooking" your claim for IU. But 3? None of them can read? Berta has said that they cant read, and I do not doubt her. I think they should offer "remedial reading" classes to rating specialists, DRO and BVA judges so that they can get their reading skills up to a second grade level.

[BlakePaigeStone]

Broncovet;

Thanks for you input. As I stated, my 1995 claim for benefits wasn't awarded until 2002; and ...that was after I'd filed a Writ of Mandamus. All of my rating decisions, (30% from 1995-to-May of 2002; then, 70%/TDIU), were decided at the same time, (May, 2002); and ...I received the envelope in July of 2002.

There was only one adjudication session ...after my filing of the 'Writ of Mandamus;' and ...that was at the local VARO-level. My claim had been languishing for seven years. It had been processed at three different VAROs. (Newark, NJ; Atlanta, GA; and Philadelphia, PA)

Remember that... the VA couldn't find my stressor confirmation ...for 7-years; and ...I found it in less than 2-hours after arriving at the 'NARA Archives II,' in Matyland!

I had to do my own PTSD stressor-event research! After I sent the information, (and location), to the VARO, they still dragged their feet for another six-months ...or so, until I filed the Writ of Mandamus. Then, I had all of my rating-awards within 30-days! Understand that... 'I went from homeless, (after my discharge from the VAMC-Lyons), on-the-streets, unemployed, and suffering from PTSD-Chronic ...since well before I actually knew, (via PTSD program in 1995), what condition I had; to... receiving a retro-active rating award, (30% for over 7-years; and 70%/TDIU from May 30, 2002), in July of 2002!

I was in the middle of a major life-changing event ...for me! I was spent ...from dealing with the VA; and ...didn't want anything else to do with them!

I was in constant fear of the award being some... 'huge-joke-of-a-mistake!' The PTSD had become much worse ...since 1995, when I had been in the VAMC-Lyons PTSD program. I had been getting help, all along ...while I was homeless and unemployed, at the 'Vet Center-Philadelphia; and ...the VAMC-Philadelphia.'

That's why I'm still waiting for my claims file to be delivered. I received the first 100-pages for free; but ...had to send them, (VARO-Honolulu), a check, on August 2, 2011 ...for the rest of the 1,500+ pages! I submitted my request for my claims file ...in September of 2010! There has got to be so much corroborating information, to verify my reported events of that time-frame, in my claims-file.

I have to file a C.U.E. because of the missed time-limit to appeal the rating decision of 2002. (which covered September, 1995-to-May, 2002) It's the 'only' rating decision that I've ever received!

Sonny

Blake

I would add:

Did both the VARO and the BVA make the same mistake, that is, fail to adjuticate your IU claim? The reason I ask, is this is "smelling" a lot like you are a victim of shreddding to me. You see, how is the VA going to say that neither the VARO, nor the DRO, nor the BVA judge could read that you were unemployed? All 3 of these adjuticators, plus their helpers were not able to read the docs statement? This smells like the reason is because the VA shredded your evidence. I can understand one adjuticator "overlooking" your claim for IU. But 3? None of them can read? Berta has said that they cant read, and I do not doubt her. I think they should offer "remedial reading" classes to rating specialists, DRO and BVA judges so that they can get their reading skills up to a second grade level.

[BlakePaigeStone]

*UPDATE:

I haven't posted on the progress of this 'CUE appeal' because the attorney whom I contacted, suggested I await the response of the VARO-Honolulu ...from my 'NOD,' which I submitted in May, 2011. ('primarily due to the current workload, and scheduling, of their law office')

I also had, at that time, (August, 2011), to wait for the balance of my 'VA claims file' to be shipped to me; as ...the attorney suggested that I should, first, go over the medical reports in my claims file.

I had also included a request for a 'DRO review,' in my 'NOD letter.' I found quite a few medical reports that support my position; however, I had to write to an investigative office at the VAMC-Lyons in order to get my PTSD medical reports; as ...they'd stated that there were no records indicating my ever being in their PTSD-program! They finally found my records, in November, 2011 ...after I'd written to the 'VA Office of General Counsel, in Washington, DC.' They compelled the 'VAMC-Lyons' to do a 'second' search!

All prior responses for these records, to the VARO-Honolulu, had been negative! (that was my very first indication of the non-receipt of my medical reports, from VAMC-Lyons) Therefore, my medical reports, from the VAMC-Lyons PTSD program, in 1995, had never been sent to any of the inquiring VARO requesting offices! This is 'new' evidence!

So, I am waiting for a decision from the 'DRO-Honolulu' ...concerning my 'NOD' for a 'CUE/initial rating increase.'

I'm still open to any input; and ...I'll keep 'HadIt.com' posted of any new developments. Thank you.

Sonny

[carlie]

*UPDATE:

I haven't posted on the progress of this 'CUE appeal' because the attorney whom I contacted, suggested I await the response of the VARO-Honolulu ...from my 'NOD,' which I submitted in May, 2011. ('primarily due to the current workload, and scheduling, of their law office')

I also had, at that time, (August, 2011), to wait for the balance of my 'VA claims file' to be shipped to me; as ...the attorney suggested that I should, first, go over the medical reports in my claims file.

I had also included a request for a 'DRO review,' in my 'NOD letter.' I found quite a few medical reports that support my position; however, I had to write to an investigative office at the VAMC-Lyons in order to get my PTSD medical reports; as ...they'd stated that there were no records indicating my ever being in their PTSD-program! They finally found my records, in November, 2011 ...after I'd written to the 'VA Office of General Counsel, in Washington, DC.' They compelled the 'VAMC-Lyons' to do a 'second' search!

All prior responses for these records, to the VARO-Honolulu, had been negative! (that was my very first indication of the non-receipt of my medical reports, from VAMC-Lyons) Therefore, my medical reports, from the VAMC-Lyons PTSD program, in 1995, had never been sent to any of the inquiring VARO requesting offices! This is 'new' evidence!

So, I am waiting for a decision from the 'DRO-Honolulu' ...concerning my 'NOD' for a 'CUE/initial rating increase.'

I'm still open to any input; and ...I'll keep 'HadIt.com' posted of any new developments. Thank you.

Sonny

Sonny,

If the info above is correct then you need not meet, the more stringent rules

and criteria,for a claim of CUE.

It could much more easily be resolved under the following reg:

3.156 New and material evidence.

(a) General.

A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)