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

[broncovet]

Carlie is correct. If these are new SERVICE records, under 3.156 C, its even better for you, Blake.

You see, to try to meet the "CUE" standard of review is the least Veteran favorable. There is no "benefit of the doubt". So, why make it more difficult for you, if you can simply bring 3.156 C to their attention, while keeping alive "BOD"?

Im sure your attorney knows this, but if it makes you feel better, bring it to his attention.

[carlie]

bronco,

I had only shown 3.156 a

because from how I understand his post,

this evidence that has never been considered

is not service records,I believe it is VAMC records.

[john999]

VA records are not service records as far as I know, but Bronco is right that 3.156 is easier than doing a CUE if they are service records.

[carlie]

VA records are not service records as far as I know, but Bronco is right that 3.156 is easier than doing a CUE if they are service records.

John,

You are correct.

That is exactly why I posted 3.156 a

and not 3.156 c.

Depending on many different factors 3.156 b

might also be applicable to the OP -

but the way I am understanding it 3.156 c would not be applicable

to "1995 VAMC clinical treatment reports, and 1995 VA doctor's diagnosis"

[BlakePaigeStone]

Ok; here's a fast-forward on my '...CUE for an increased initial rating percentage, from 30% to, at least, 60% --

Then, I noticed that all entries, concerning my 'CUE Appeal,' suddenly disappeared from the eBenefits website! After many inquiries to my VARO-Honolulu ...I received a letter from them, stating the following:

"We received your Notice of Disagreement May 16,20ll that cannot be accepted because the

rating decision of May 3,2011 was premature. We had no authority to adjudicate a freestanding

claim for entitlement to an earlier effective date. You properly framed you claim as a claim for

an earlier effective date based on clear and unmistakable error (CUE) and that claim needs to be

considered. When a decision is made on the CUE claim and you disagree with that

determination, you can then file a Notice of Disagreement at that time."

First of all, I had been misunderstood, as to what my CUE was for. I was seeking an 'increase, from 30% to at least 60%, of my initial rating percentage ...which covered the period from 1995-to-2002!' (not an 'EED of my TDIU')

Then, an entry was placed on the eBenefits website ...showing my new statement of my CUE claim/appeal, which I promptly forwarded to them, as my updated NOD. (???) The VARO-Honolulu entered the NOD as November 8, 2012; (denial decision was 10/19/2012) -- so, they just ignored the original NOD, and substituted my most-recent statement ...that corrected, and clarified, what I was filing my CUE for, as the new NOD!

I then received a letter about my option for a 'DRO appeal.' (which I selected) -- Finally, as of 1/3/2013, the website shows my appeal pending. (at local VARO)

Now, can anyone figure what all that maneuvering really means?!

I also located, in my VA file, (which finally arrived in September, 2011), a '1971 service medical record,' from my '93rd Evac Hospital, in Long Binh, South Vietnam' ...that diagnosed my acute anxiety, (the term, 'PTSD' hadn't been coined at that time), and recommended my separation from the military.

The VAMC-Lyons also found my PTSD program treatment records; as ...they had been responding to the VARO-Honolulu with negative results, for years, as if I'd made-up my in-patient stay at that VAMC. How could they use that as an excuse, when the program is mentioned in my rating for PTSD?!

So... as of 1/3/2013 I am pending my DRO decision; and ...I think they have understood what my CUE is for!

[Berta]

“I also located, in my VA file, (which finally arrived in September, 2011), a '1971 service medical record,' from my '93rd Evac Hospital, in Long Binh, South Vietnam' ...that diagnosed my acute anxiety, (the term, 'PTSD' hadn't been coined at that time), and recommended my separation from the military. “

That sounds like the basis for a new decision under 38 CFR 3.156(b)

http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

Have you sent a copy of that in (with proof of mailing) to the VARO?

“The VAMC-Lyons also found my PTSD program treatment records; as ...they had been responding to the VARO-Honolulu with negative results, for years, as if I'd made-up my in-patient stay at that VAMC. How could they use that as an excuse, when the program is mentioned in my rating for PTSD?! “

Copies of that too needs to go to the VARO....unless you gave this stuff to the DRO????

“Now, can anyone figure what all that maneuvering really means? “

I went through almost 8 years of VA trying to 'maneuver' my claim , a.k.a, by trying to blow smoke up my a-- ,on my Cue claim filed in 2004.

The Nehmer VARO however, in their AO IHD award for my dead husband, awarded my CUE claim in a heartbeat.

I feel that some VAROs try to con volute CUE issues in an effort to discourage us from pursuing them.

I just kept sending them the Legal evidence for my CUE claim, which included some print outs of M21-1MR,as well as the SMC mandate , and after almost 8 years someone read it all and awarded.

They even tried to get me to buy some regulation the rater made up.

If a legal error is clearly defined in a CUE claim (and the medical evidence has already been established) and their legal error cost the claimant some cash...they committed a CUE.

It does not bode well with me at all, that Phila VARO resolved this CUE issue in mere weeks with the same legal evidence that Buffalo VARO had for almost 8 years.

There was nothing complex at all about my 2004 CUE claim. The 1998 decision I Cued contained 3 legal errors, I easily defined.

“So... as of 1/3/2013 I am pending my DRO decision; and ...I think they have understood what my CUE is for! “

Sure they do Sonny ,but I found that once they understand it, they (some ROs) try to convolute it.....

Do I understand this right..you had a DRO review in January and it involved your CUE issue?