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

[john999]

You know the meaning of "undebatable" has been argued a thousand times at the BVA and Court of Vet Appeals. My CUE met all the tests, but the VA balked at "undebatable" which has resulted in another trip to the Court. When someone who knows what they are doing looks at your claim they can often find many errors in your rating. For instance, a rating must address your social and employment adjustment if you are claiming a mental disorder. I was rated 10% 40 years ago strictly on my social adjustment on a VA psychiatric ward. This is part of my CUE as is Cushman V Shinseki 2009. This is stuff my lawyer found. I only knew my decision was unfair at a gut level since my doctor's report was excluded. Also, believe it or not, the regs regarding how to rate mental disorders changed in the middle of my initial claim between 1972-73. This caused a remand at the court because the BVA had used the wrong regs to discuss my rating.

[BlakePaigeStone]

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

Carlie;

Thanks for your input. I was just thinking that someone, out there, had a solution figured-out, and ...wanted to share! (smile) Other than... "being related, by blood, to 'Shinseki or Obama,' I really don't think there's any hope of an early decision!"

Edited June 19, 2013 by BlakePaigeStone

[BlakePaigeStone]

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.

I am not 100%; I am 70% / TDIU. I am also, arguing about the incorrect 'initial' rating percentage!

My effective date, for my service-connection, (September, 1995), is correct; the rating percentage is wrong! I did not get TDIU until 'the end of May, 2002.' So, the time period between September, 1995-to-May 30, 2002 ...is the period I'm appealing for retro-active CUE. Remember that it took me 7-years to get my award of service-connection! The granting decisions, (of my September, 1995 claim/appeal), were made, with all retro-active rating decisions, on May 30, 2002; I didn't receive notice of the decision ...until July, 2002.

Edited June 19, 2013 by BlakePaigeStone

[BlakePaigeStone]

You know the meaning of "undebatable" has been argued a thousand times at the BVA and Court of Vet Appeals. My CUE met all the tests, but the VA balked at "undebatable" which has resulted in another trip to the Court. When someone who knows what they are doing looks at your claim they can often find many errors in your rating. For instance, a rating must address your social and employment adjustment if you are claiming a mental disorder. I was rated 10% 40 years ago strictly on my social adjustment on a VA psychiatric ward. This is part of my CUE as is Cushman V Shinseki 2009. This is stuff my lawyer found. I only knew my decision was unfair at a gut level since my doctor's report was excluded. Also, believe it or not, the regs regarding how to rate mental disorders changed in the middle of my initial claim between 1972-73. This caused a remand at the court because the BVA had used the wrong regs to discuss my rating.

That's very interesting! Did you win your appeal ...yet?!

[BlakePaigeStone]

Attn.: HadIt.com

Please be advised that I have already resigned myself to fight about this particular appeal issue ...until the very end! I'll either be heading to the BVA; CAVC; U.S. District Court; or '...die trying!'

It has always been quite apparent, to me, that nobody, at the VARO-Honolulu, has ever read my 'complete claim/appeal file,' and ...all associated VAMC documents; VAMC medical treatment reports; VA inpatient and outpatient documents; and VA submitted PTSD inpatient program statements and reports '...completely!' The fact that I was diagnosed, by the VAMC-Lyons doctor, in 1995, with 'PTSD-Chronic' ...means I could only continue to get increasingly worse, from that point ...forward!

The initial rating decision, (which wasn't awarded until 2002), however, retro-actively, remained the same for seven years after the 1995 claim date; even as ...I went through periods of homelessness, inpatient hospital stays, substance abuse, isolation from all family, acute unemployment, and varying levels of deep depression. My VAMC documents reflect the chronic nature of my condition ...over the years; but ...was ignored by the rating decisions covering 1995-to-2002.

The fact that the Social Security Administration, (SSDI), awarded me disability ...also made no difference!

I'm hoping that this opportunity to get-it-right, by the VARO-Honolulu DRO, isn't just another waste of time and energy. The highest hurdle to get over, now, is the '...time factor!' I just reached my 62nd birthday; which really means... I'm already into my 63rd year! If there is an attorney who finds my case interesting, please feel free to contact me at your earliest convenience.

This 'May, 2010 CUE claim' has now, been a pending appeal ...since January, 2013. I have opted for a DRO review, at my VARO-Honolulu.

[john999]

I have not won my CUE yet. It has similarites to yours since there was medical evidence that was in the record at the time of my rating that was not before the rating staff. The VA maintains that the medical information that was excluded from my rating decision would not have made an undebatable difference in the outcome. Of course, since it was excluded how can we know. If the prosecutor does not share evidence with the defense that is grounds for a mistrial is Law 101, but not at the VA. They can hide records and then claim it would not have made any difference. My claim is at CAVC: Just go to docket and type in John King. I am John t. King