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]

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.

Berta;

Thanks, so much, for staying right by my side, with this one; as ...I know it is a complicated issue. I will keep you posted if I happen to hear anything from my DRO, at my VARO-Honolulu. As always, if anything else comes to-mind, feel free to contact me at your earliest possible convenience.

I appreciate all of your input; as ...you've been a treasure of information, over the years ...since before my first VA service-connection award/rating, in 2002. That's when I just wanted to separate the VA from my life, after fighting them since 1971 ...with the final 7-years being the most intense. The after-taste, of that fight, is what caused me to allow the one-year appeal period to pass me by. So, here I am!

I'm 'almost' sure that I will be contacting an attorney ...after the DRO decision on this CUE Appeal. The one thing that the VA has taught me, over-the-years, is... 'patience!' I'm keeping this whole CUE appeal process, under this thread; and ...will update it as necessary. Thanks again.

Regards,

Sonny

[BlakePaigeStone]

. 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

John;

Thanks for your valued input. You are absolutely right; and ...I'm making preparations to select an attorney in the not too distant future, when the DRO decision is rendered.

Your input is always welcome. Did you note, (in my entry #29 ...above), the VA's 'special correspondence' move?!

Regards,

Sonny

[Berta]

Yes, John is certainly correct on the way the CUE claim must be worded.It must clearly define the regulations the VA broke in the unappealed decision.

This BVA decision shows how a CUE claim can succeed:

It is the exact basis for CUE ,under 38 USC, 5109A ,that I used for my SMC CUE claim, (violation of evidentary requirements of 38 CFR 4.6) along with proof of the 2 other CUEs they committed (Improper diagnostic codes and refusal to apply the SMC mandate:

Also I sent the VARO the link and excerpt from this BVA case in support of my documented legal evidence for my recent request that they CUE themselves.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp08/Files5/0844495.txt

In part:

“The veteran's assertion of CUE is based on VA's failure to
consider highly relevant medical evidence, that is, the RO
denied the existence of medical evidence that was clearly of
record at the time of the rating decision. The Board is
convinced that the RO committed error based on the record and
the law that existed at the time the decision was made and
had the error not been made, the outcome would have been
manifestly different. Grover, supra. “

"BVA often also refers to the Three "prongs" of CUE,citing VA case law:

The Court has established a three-prong test defining CUE.  
The three prongs are: 
(1) either the correct facts, as they 
were known at the time, were not before the adjudicator or 
the statutory or regulatory provisions extant at the time 
were incorrectly applied; 
(2) the error must be undebatable 
and of the sort which, had it not been made, would have 
manifestly changed the outcome at the time it was made and 
(3) a determination that there was CUE must be based on the 
record and law that existed at the time of the adjudication 
in question.  See Damrel v. Brown, 6 Vet. App. 242, 245 
(1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992)

I think a CUE claim should be stated as briefly as possible.Although my SMC CUE involved 3 separate violations of established VA case law and regs, I got it all on one page, and then referred them to the legal evidence enclosed as well as the enclosed decision I CUEd which had proof of the established medical evidence on the rating sheet that came with it.

This part here:

2) the error must be undebatable 
and of the sort which, had it not been made, would have 
manifestly changed the outcome at the time it was made

In this respect I made a statement that their obvious CUEs in the 1998 decision I filed CUE on, had deprived me of an accrued award of 6 years of proper SMC ,due my deceased husband, and also a proper monetary accrued award regarding my husband's Section 1151 P & T stroke, which would have manifestly changed the outcome of their erroneous 1998 decision to me under 1151.

As to the third prong it sure pays to carefully look over the pertinent regs in existence at time of the cued decision as well, and the VA Schedule of Ratings in existence at time of the alleged CUE.,as some regs and ratings have changed but many,such as the SMC Mandate and 38 CFR 4.6 have never been amended or altered.

In the award for my SMC CUE , as it was part of Nehmer, the AO IHD retro they owed my husband was based on the old VA IHD rating schedule during his lifetime ,which was amended significantly after he died.

I had forgotten that fact when I filed this claim and expected the IHD retro to be much more than what the CUE would garner. I was so wrong.

The CUE retro award was far greater than the IHD retro.And it is still wrong.

Edited May 28, 2013 by Berta

[BlakePaigeStone]

Yes, John is certainly correct on the way the CUE claim must be worded.It must clearly define the regulations the VA broke in the unappealed decision.

This BVA decision shows how a CUE claim can succeed:

It is the exact basis for CUE ,under 38 USC, 5109A ,that I used for my SMC CUE claim, (violation of evidentary requirements of 38 CFR 4.6) along with proof of the 2 other CUEs they committed (Improper diagnostic codes and refusal to apply the SMC mandate:

Also I sent the VARO the link and excerpt from this BVA case in support of my documented legal evidence for my recent request that they CUE themselves.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp08/Files5/0844495.txt

In part:

“The veteran's assertion of CUE is based on VA's failure to

consider highly relevant medical evidence, that is, the RO

denied the existence of medical evidence that was clearly of

record at the time of the rating decision. The Board is

convinced that the RO committed error based on the record and

the law that existed at the time the decision was made and

had the error not been made, the outcome would have been

manifestly different. Grover, supra. “

"BVA often also refers to the Three "prongs" of CUE,citing VA case law:

The Court has established a three-prong test defining CUE.  
The three prongs are: 
(1) either the correct facts, as they 
were known at the time, were not before the adjudicator or 
the statutory or regulatory provisions extant at the time 
were incorrectly applied; 
(2) the error must be undebatable 
and of the sort which, had it not been made, would have 
manifestly changed the outcome at the time it was made and 
(3) a determination that there was CUE must be based on the 
record and law that existed at the time of the adjudication 
in question.  See Damrel v. Brown, 6 Vet. App. 242, 245 
(1994); Russell v. Principi, 3 Vet. App. 310, 314 (1992)

I think a CUE claim should be stated as briefly as possible.Although my SMC CUE involved 3 separate violations of established VA case law and regs, I got it all on one page, and then referred them to the legal evidence enclosed as well as the enclosed decision I CUEd which had proof of the established medical evidence on the rating sheet that came with it.

This part here:

2) the error must be undebatable 
and of the sort which, had it not been made, would have 
manifestly changed the outcome at the time it was made

In this respect I made a statement that their obvious CUEs in the 1998 decision I filed CUE on, had deprived me of an accrued award of 6 years of proper SMC ,due my deceased husband, and also a proper monetary accrued award regarding my husband's Section 1151 P & T stroke, which would have manifestly changed the outcome of their erroneous 1998 decision to me under 1151.

As to the third prong it sure pays to carefully look over the pertinent regs in existence at time of the cued decision as well, and the VA Schedule of Ratings in existence at time of the alleged CUE.,as some regs and ratings have changed but many,such as the SMC Mandate and 38 CFR 4.6 have never been amended or altered.

In the award for my SMC CUE , as it was part of Nehmer, the AO IHD retro they owed my husband was based on the old VA IHD rating schedule during his lifetime ,which was amended significantly after he died.

I had forgotten that fact when I filed this claim and expected the IHD retro to be much more than what the CUE would garner. I was so wrong.

The CUE retro award was far greater than the IHD retro.And it is still wrong.

Berta;

I can see, from reading your entry ...above, you've had quite a journey with the VA. What impresses me, is... 'you have beat the VA-evil back ...at-every-turn! No wonder everybody, including me, respects 'your' advice. In fact, I seek it out!

With all of the statements coming out of the VACO, about cutting the backlog, do you see it affecting the 'DRO Appeal process' in any way, at all; do you? It just looks like another paper-shuffle to me. In fact, I'm thinking that it might affect those of us with appeals pending, in a 'negative' way; by being put on the back-burners.

Like I previously said, I'm in the early stages of finding a suitable attorney; whom I hope to turn my VARO-Honolulu CUE-Appeal over to ...as soon as the VARO-Honolulu DRO decision is rendered.

My $64,000.00 question, to you, is... "how can I move this process along at a more-than snail's pace?" My having the DAV as my NSO representative seems to make absolutely no difference at all! In my case, an attorney would be the best route to follow; and ...soon, if I want to resolve this before all of us, (Vietnam veterans), have left the planet!

[carlie]

The only way to help expedite is through submitting a hardship of some type

and even that is questionable these days, as there is already a long line for hardship

expedition.

The attorney can help with somethings but there is no way

an attorney or having an attorney, can speed any action up.

JMHO

[broncovet]

Blake

Since you are at 100%, the only important other issue is the effective date. (OK, sometimes SMC can be an issue also). Unless it could lead to an earlier effective date, it would be "moot" whether you got IU with 30%, 50%, 70% etc.