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

The VA makes the rules via 38 CFR's, established case law, and sometimes fast letters or OGC opinions. Your best shot at winning is to study these laws, or pay a lawyer to do so, and then try to achieve the best result under your circumstances.

Case law suggest there are 5 elements in a claim:

http://www.lexisnexis.com/veterans/offer/images/VBM54.pdf

ESSENTIAL ELEMENTS (STATUS, DISABILITY, SERVICE CONNECTION, RATING, AND WHEN IN QUESTION, EFFECTIVE DATE)

§ The initial assignment of a rating following the award of service connection is part of the original claim. See West v. Brown, 7 Vet. App. 329, 332 (1995) (en banc) (successful claimant has not had his case fully adjudicated until there is a decision as to all essential elements, i.e., status, disability, service connection, rating, and when in question, effective date). In light of the above, the Court holds that when a claimant is awarded service connection for a disability and subsequently appeals the RO’s initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. See Shipwash v. Brown, 8 Vet.App. 218 (1995).

You can appeal any of these issues, if you dispute them. When you already have a disability rating (service connected) you can dispute the disabilty percentage, or you can dispute the effective date.

Most of the time, the disabilty percentage is a judgement call by the rating specialist, and needs to be timely disputed. That is, if you dispute the disability percentage you dispute the rating specialists evaluation percentage. He is making a "judgement call", and the VA wont CUE his "judgment" on your disability percentage.

This being said, you can reopen a claim with "new and material evidence" under 38 CFR 3.156 C. This is not a CUE..you are asking VA to reconsider your claim based on "new evidence" that was not available at the time.

Now, there are 2 possibilites:

1. The VA already had your evidence, and considered your evidence. You can "attack" this type by arguing the VA owes you a "reasons and bases" as to why they did not consider this favorable evidence. Something like this:
"While the Veteran had evidence in his c file of PTSD, this evidence was not conclusive, or outweighed by other negative evidence that was more persuasive (such as a VA examiner opinion that conflicts with this). You can appeal, arguing that the VA did not give an adequate reasons and bases for not considering this favorable evidence. This is CUE, the VA has to give a reasons and bases, and the lack of one is error.

2. If the "new evidence" was not available to VA at the decision time, then you dont need to file a "Cue" but instead a request to reopen under 38 CFR 3.156 a, b or C.

[BlakePaigeStone]

HadIt.Com;

So, I'm still waiting to hear something from my VA Regional Office, (Appeals Section), in Honolulu; and ...getting those IRIS form letter email replies ...about the status of any 'DRO' action on my 'CUE Appeal.'

I started this 'CUE claim' in May of 2010; filed my 'NOD' in November of 2012; and ...haven't heard anything encouraging to-date! I have, however, had time to read quite a few similar, 'BVA' and 'CAVC' cases ...which were also retro-actively granted. One was even a 'WWII' case; but ...most were Vietnam-era retro-active 'CUE' awards!

The main problem, today, is with having one's appeal, (claims file), even processed ...to be assigned to a 'DRO,' who can do an in-depth reading of the claims file. This is a result of the current claims backlog issue. There is also a Congressional, (House Committee on Veterans Affairs), hearing being held, specifically, on the 'appeals issue.' -- Check-out the following link:

http://veterans.house.gov/hearing/why-are-veterans-waiting-years-on-appeal-a-review-of-the-post-decision-process-for-appealed

It is titled...

"Why Are Veterans Waiting Years on Appeal?: A Review of the Post-Decision Process for Appealed Veterans’ Disability Benefits Claims"

As always, all input is welcome.

Sonny / 'Vietnam Veteran'

[harleyman]

Carlie -Posted 29 May 2013 - 11:23 AM

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 is absolutely correct. If you are already receiving benefits at the 100% rate (including TDIU), there is no way your case will be considered for a Priority claim, unless you have been diagnosed with a teminal illness. Hardship cases, at my RO are no longer handled by the Special OPs team. They are given to a team to work based on the number of issues claimed or the issue involved in the final decision. As far as Appeals go, it could be a long wait. The DROs are swamped with reviews and "other" RO assignments, such as checking the work of trainees, attending hearings, providing training for RVSRs to name a few.

Attorney cases at my RO do not have any priority over any other claim being worked. There is one difference with attorney representation, the file is tabbed as a sensitive 7 file, and is usually worked by seasoned (meaning non trainee) VSRs and RVSRs. Usually this means a longer wait as these employees generally have a larger workload and higher production standards, and any completed work is reviewed by the Private Attorney Coordinator. I guess the advantage, if there is one, is that the people working the file have a bit more experience.

Edited July 14, 2013 by harleyman

[Motherof3]

Good info harleyman. That's why I love hadit.com. I read the short bio on its conception this week and that made me appreciate this site even more. Many thanks to you all. You are truly a ministry from God for all.

[BlakePaigeStone]

*Update

I am still waiting for a reply from my VARO-Honolulu, about my 2010 CUE claim/appeal.

I also contacted the 'Office of Case Management,' in Washington, DC ...in an effort to shake-things-up. Oh well, I never even got a return call from the voice-mail which I left!

I just need to make sure the assigned 'DRO' really reads my VA C-file ...completely!

I made an entry, to bring everyone up-to-speed, at the following link:

Posts I've Made

In Topic: Cue Initial Rating Decision

01 May 2013 - 03:31 PM

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!

In Topic: Cue Initial Rating Decision

18 September 2012 - 12:57 PM

*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

In Topic: Hawaii( Hi): Honolulu

16 September 2012 - 12:25 PM

I've been waiting for a 'DRO review' since my claim's 'denial, and NOD submission,' in May, 2011; my claim was originally filed in May, 2010. What can I expect, in terms of time, for DRO contact?

In Topic: Cue Initial Rating Decision

22 August 2011 - 09:35 AM

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

'broncovet', on 21 Aug 2011 - 8:32 PM, said:

'broncovet', on 21 Aug 2011 - 8:32 PM, said:

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.

In Topic: Cue Initial Rating Decision

21 August 2011 - 01:28 PM

'carlie', on 20 Aug 2011 - 01:47 AM, said:

'carlie', on 20 Aug 2011 - 01:47 AM, said:

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)."

Any, and all, input is welcome ...as always.

Regards,

Sonny

[BlakePaigeStone]

HadIt.Com;

I just have to say that I received an email from my 'D. A. V.' office, at the VARO-Honolulu, today. They were informing me of their correspondence to the VA Intake office, concerning my request for the DRO to contact me, by phone, when he/she starts working my file. I hope I made it clear that I wasn't requesting a formal hearing; just an informal phone call.

As noted, earlier, this 'CUE Appeal' for a retro-active, (1995-2002), increase of my initial award rating percentage, (from 30% to 60%), was started ...as a 'CUE claim,' in May of 2010.

I intend to take this ...as far as necessary! I will keep HadIt.Com informed of all developments; as ...my experience may help some other veteran in the future.

Regards,

(Sonny) E. T. English - 'Vietnam Veteran'

Edited July 18, 2013 by BlakePaigeStone