ptsd What Can I Do

[john999]

It is too soon to file a CUE. It is right to file a NOD because you should have been awarded S. The NOD should be enough without have to go to DRO or BVA. By not granting S the VA made an error. You have to have a final decision before you file a CUE and your decision is not final.

[Hambone11B]

Not questioning you John999 but can you expound upon why my decision is not final? Is it because I'm not P&T, if it is I am SO glad I didn't go in and throw a fit lol.

[john999]

Your decision becomes final one year after it is made unless you file an appeal. Your decision would become final in May of 2012 if you had not filed the NOD. Since your rep did file the NOD then when you get "S" it should go back to the date you got TDIU. I did a CUE because my claim had become final. In your claim you don't have to prove anything. If you are total plus 60% you are entitled to "S". When the VA reads your NOD they should grant "S" on the spot. S is a statutory benefit like getting extra money for dependents. All you have to show is that you are at least 30% and have a dependent or spouse. You don't have to go to a hearing or make a case. Bradley vs Peake is the case law that says you should have gotten S.

[carlie]

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=8a6808756f99e529869421304e1f9605&rgn=div8&view=text&node=38:1.0.1.1.4.1.60.69&idno=38

§ 3.160 Status of claims.

The following definitions are applicable to claims for pension, compensation, and dependency and indemnity compensation.

(a) Informal claim. See §3.155.

(b) Original claim. An initial formal application on a form prescribed by the Secretary. (See §§3.151, 3.152).

© Pending claim. An application, formal or informal, which has not been finally adjudicated.

(d) Finally adjudicated claim. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. (See §§20.1103 and 20.1104 of this chapter.)

(e) Reopened claim. Any application for a benefit received after final disallowance of an earlier claim, or any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the Board of Veterans Appeals which was not considered by the Board in its decision and was referred to the agency of original jurisdiction for consideration as provided in §20.1304(b)(1) of this chapter.

(Authority: 38 U.S.C. 501)(f) Claim for increase. Any application for an increase in rate of a benefit being paid under a current award, or for resumption of payments previously discontinued.

[27 FR 11887, Dec. 1, 1962, as amended at 31 FR 12056, Sept. 15, 1966; 55 FR 20148, May 15, 1990; 58 FR 32445, June 10, 1993]