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]

Blake posted:

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!

end of Blake quote

This is SHOUTING 38 CFR 3.156 C to me! (Lost service records). The "Stessor confirmation" is a Service record.

CUE's are great for playing pool, but if you want to win benefits, you are likely to have much better luck using either 3.156 a, b, or C.

3.156 C is the best, when applicable:

§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)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (Authority: 38 U.S.C. 501(a))

© Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

[broncovet]

Importantly, note the Very last sentence of 3.156 C, in BOLD, above. To reiterate, the effective date (when service records are lost, then found) is the DATE VA received the PREVIOUSLY DECIDED CLAIM.

If you do a search on CAVC claims, you will find that many Vets have won retro on 3.156 C.

[Berta]

Broncovet is right and there certainly are some winners. Here are a few successful 3.156 awards at the BVA:

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp12/Files2/1212421.txt

In part:

“THE ISSUE

Entitlement to an effective date earlier than August 21, 2006, for the granting of entitlement to service connection for posttraumatic stress disorder (PTSD). “

“The Board finds, in light of the above conclusion, that the VA's failure to obtain confirmation of the stressors through contact with the Department of Defense was administrative error. VA has indicated that "a claimant should not be harmed by an administrative deficiency of the government." 70 Fed. Reg. at 35, 389. Because the information supplied by the appellant prior to the initial final decision in December 2001 ultimately was sufficient to verify his inservice stressors and substantiate his claim, he shall be afforded the benefit of an effective date back to September 19, 2000, when his original claim was received pursuant to 38 C.F.R. § 3.156©(3).

ORDER

An effective date of September 19, 2000, for the awarding of service connection for PTSD is granted.”

(In essense this claim seemed to involve a clear and unmistakable error on the RO's part in their 2001 decision)

The entire regulation (38 CFR 3.156 ) needs to be considered as to how this regulation can support a better EED.)

Another recent one:

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp12/Files5/1233660.txt

“The Veteran asserts that an earlier effective date is warranted for the grant of service connection for the service-connected back disability. He argues that application of 38 C.F.R. § 156© is warranted and that such would result in the establishment of an earlier effective date for the grant of service connection for the back disability. “

“ORDER

Subject to the law and regulations governing payment of monetary benefits, an earlier effective date of April 10, 1975, for the grant of service connection for lumbar spine spondylosis, status post fusion, is granted.”

The case was also remanded under Manlicon.

The 38 CFR 3.156 regulation was revised in 2005 and this case shows how the BVA interpreted that regulation.

But As I recall you said the examiner found you as having PTSD Chronic ,in 1995 w/unemployability.

"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."

In my case , it was evidence like that which caused my CUE claim be awarded.

You might well have the basis here os using both CUE and the 3.156 regulation.

The doctor said you were unemployable with chronic PTSD and you have not worked, as I recall, since then.

"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!"

You posted that last year.

Carlie is right as to the difference between 3.156 ( regarding newly discovered "service" records, and the fact that CUE can arise when VA does not consider records that were in VA's possession yet might not have made it to the proper AOJ VARO.

There are big differences between 3. 156 and a CUE claim.It sounds to me like you have possible basis for both types of claims.

They are both powerful ways to go.

BTW, Lyons VAMC did the same thing to me when I tried to get my deceased husband's Med recs from them.I still have their letter saying no records existed.

Oddly enough the local SSA office ,I found out, still had these voluminous and extensive records from the Lyons VAMC..You would think the VAMCs would know where they already sent these records to,when someone requests them.

Edited May 2, 2013 by Berta

[BlakePaigeStone]

“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?

Berta;

Thanks, as usual, for all of your valued input, concerning my 'CUE issue,' over these past four, (4), years.

Yes, I've sent another copy of all my research documents to the VARO-Honolulu Appeals Section, and ...the DAV. The specific document from the doctor/hospital, in South Vietnam, was found in my C-file! That's why it has become more, and more, apparent to me that nobody has ever read my file, 'from-end-to-end.'

My 'DRO' appeal option was entered into the VA system in January, 2013 ...since my misunderstood CUE was denied as a claim, which I filed in 2010, for an EED. My NOD was, then, converted to a DRO opted appeal, when they sent me the DRO option papers to sign.

The VA eBenefits website calls this move a... 'Special Correspondence - Appeal is Possible Notification.' (notice the dates - ???):

Details of Your Claim

Claim Received: 01/11/2013

Claim Type: Special Correspondence

Claim Closed: 01/16/2013

The next thing that I get in the mail, is a letter stating that corrections have been made; so ...I can choose to opt for a local VARO-Honolulu, DRO or ...traditional BVA appeal. (to my, now '...NOD') Confusing ...huh?! Of course, well before I'd received these notifications, I had written them a 'Statement in Support of Claim,' (November, 2012), clarifying the CUE. They refer to this document, on the ebenefits website, as my NOD.

So, as of today, I am still waiting for a VARO-Honolulu DRO assignment; as ...my status is posted as 'appeal pending.' I'm thinking that whoever picks-up my file, and starts to read it, sees how confusing it has become, since the 2002's award mistake, (which was retro-actively awarded, at 30% ...back to 1995), they just push it to the bottom of the stack ...in hopes of pulling an easier, less time-consuming, CUE appeal!

Yes, to answer your question ...you completely understand what I'm experiencing. I'll keep you posted; and ...feel free to offer any input. Thanks ...again!

Sonny

[Berta]

Blake, I agree with others here that are stressing 38 CFR 3.156 as a good way to go.

CUEs are often like the famous "Watergate" question:

What did the VA know and when did they know it?

If VA had significant medical evidence (such as a SSDI award for PTSD) when they awarded the 30% to you in 1995 and failed to consider the SSA findings ,or failed to consider any other probative evidence of a potential higher rating,then they committed a CUE under evidentary requirements of 38 CFR 4.6.

You posted:

Yes, I've sent another copy of all my research documents to the VARO-Honolulu Appeals Section, and ...the DAV. The specific document from the doctor/hospital, in South Vietnam, was found in my C-file! That's why it has become more, and more, apparent to me that nobody has ever read my file, 'from-end-to-end.'

To me ,that medical document -depending on how long VA had it ,warrants a valid CUE as well as a claim under 3.156.

I was appalled,when I got my C file years ago, to find all of the missing stuff VA had told me had never existed.

One thing right on the bottom was a 6 page Peer Review Report that caused the Regional Counsel to want to settle with me ,for my FTCA case ,in mere months after I had filed SF 95.

Not only did the RC and the Peer Review doctor retire suddenly, but the report also mysteriously vanished from the VA.

Thats OK. I won FTCA anyhow but this missing report added almost 2 years to the FTCA case. I have used the same report, since however, successfully, for 2 or 3 of my other claims.

We all must get copies of our C files and keep those copies up to date.

Back to the CUE 'Watergate ' question, this sort of is the premise of the Bell V Derwinski decision.

I have a CUE pending on an award letter I got last year.Not a traditional CUE but asking VA to call CUE on itself.

This might help someone out there.

VA awarded me 6 months of accrued benefits under 1151 for my husband's VA caused- Section 1151 CVA last year. They had never acknowledged the CVA he had as under 1151, until they finally awarded a regular CUE claim I had pending for almost 8 years. He had the CVA (stroke) 21 years ago and this grew out of his 1151 claim, that was pending when he died.

They used the CVA 'residuals' for an accrued SMC HB award ( part of my regular CUE claim) however they neglected to consider there was significant medical evidence in VA's possession since 1992, that his CVA was permanent and total, not for 6 months, but for 27 months.(up until his death)

The evidence to support that came from SSDI, VA Central Office, VA Neurologist C & P, Student Loan waiver signed by VA doctor, EEOC (due to ADA award), and the Department of Labor, as well as VA Voc Rehab and from letters from 2 Senators and my Congressman, in whIch the VA had confirmed his stroke,although Permanent and Total, was NSC (yet the award I got last year,20 years after he had the CVA ,finally declared the stroke was due to piss poor VA medical care..

There are very few CVAs rated ,per BVA decisions, at 100%. The VA, after the 6 month 100% rating, then rates the residuals.In many cases the veteran has signiicantly improved and the ratings drop from 100% but are correct.

However VA itself declared my husband's CVA as P & T , one statement of that fact from the head of the VBA, and I submitted his letter as evidence.

Their6 month rating was incorrect by 21 months, and I asked them to CUE that specific decision.

My long point here is that VA had this evidence , and even referred to it in past VA decisions, yet never considered it when they made the accrued award.

Prior to the award under 1151, it didnt matter toVA at all to state he was NSC P & T due to the stroke because they aggressively fought me over the 1151 CVA issue , I guess never dreaming I would finally win the CUE I filed on that.

That specific CUE claim I filed in 2004 and they awarded in 2012 at a different VARO.

I have 8 years of ridiculous denials and attempts to convolute the very simple 2004 CUE issues I had.

But I t took mere weeks for the Nehmer division (since the CUE impacted on my Nehmer award), to read it carefully, read my legal evidence to support it, and read the 1998 decision they made 3 CUEs in,and then award it.

As many have said 38 CFR 3.156 is an easier way to go then CUE but often CUE claims do not involve any aspect of 3.156 at all and you have to maintain the focus of the CUE, and clearly define the regulations they broke, if the VA attempts to confound it.

"you completely understand what I'm experiencing" Indeed I do!

I have stuff here from VA on my 2004 CUE claim that is laughable now.......They even tried to make up a regulation.

But it just goes to show one reason why we have a backlog.

It took someone at VARO a lot of time to prepare send me some of this ridiculous garbage over almost 8 years in futile,long renditions ,to try to get me to believe I was wrong, and yet another RO had no problem awarding the CUE claim right away.

Edited May 27, 2013 by Berta

[john999]

. You have to be oh, so, careful when you word your CUE. This why I think you need a lawyer because the VA is playing with you.

When I filed my CUE the first thing the VA did was try and use evidence that was not part of the record at the time of the CUE to dismiss my CUE. If there is big retro it is like trying to land a great white on 10lb test line without a lawyer or one of our hadit lawyers working for you full time.

John