Is This A Cue

[BigRed]

Hello everyone and thanks in advance,

I filed a claim in May 2005. VA sent me to C&P exams for this claim and made a decision on Nov. 29, 2005. I was denied. I was frustrated and did not appeal within 1 year and the case was closed. Note: I also did notice that they had not listed my C&P results as evidence in the denial letter.

Fast forward to 2012. I received a letter from Va stating that they had re-opened my claim because in the Nov. 2005 decision they had not looked at/used my C&P results which they had received on November 15, 2005. Remember they denied me on Nov. 29th. I obtained a VSO who helped me prepare a NOD for DRO review. I have been treated for the same ailments since 2005 and the VSO stated that if the appeal is won then we should try and get retro back to the original claim date of May 2005 due to this CUE by VA.

I know that this is early in the game but if the appeal is won, would this be feasable?

BigRed

[Berta]

I agree as to the lawyer and John said it better then I could.

Va wants our heads to spin...

I just wonder about this:

"In my opinion the PTSD and Chronic Sinusitis should be retro'd back to the original claim of 2005."

As I understood this, the PTSD was not formally claimed at that time, but then again ,the diagnosis was the result of an exam.

"Generally, the effective date of the award of an increase in compensation is either the date of claim or the dated entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). The exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within 1 year from such date; otherwise, the effective date is the date of receipt of the claim. "38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

Did you formally claim the PTSD within one year after the Neuro and the VA psychologist diagnosed you with PTSD?

Because the date of their diagnoses was the “factually ascertainable” date that entitlement arose ...in my opinion.,,,even though you had not formally claimed PTSD at that time.....

This is something a good lawyer could sure figure out.

[BigRed]

I agree as to the lawyer and John said it better then I could.

Va wants our heads to spin...

I just wonder about this:

"In my opinion the PTSD and Chronic Sinusitis should be retro'd back to the original claim of 2005."

As I understood this, the PTSD was not formally claimed at that time, but then again ,the diagnosis was the result of an exam.

"Generally, the effective date of the award of an increase in compensation is either the date of claim or the dated entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). The exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within 1 year from such date; otherwise, the effective date is the date of receipt of the claim. "38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

Did you formally claim the PTSD within one year after the Neuro and the VA psychologist diagnosed you with PTSD?

Because the date of their diagnoses was the “factually ascertainable” date that entitlement arose ...in my opinion.,,,even though you had not formally claimed PTSD at that time.....

This is something a good lawyer could sure figure out.

Berta,

You are correct the PTSD was not formally claimed at that time but during the Gulf War Examination it was diagnosed by the Neurologist and I was sent to a specialist (Psychologist) who also diagnosed PTSD with nexus statement linking it to the war. This evidence should have gone back to the raters. If I would not have asked for a copy of my exams I would not have known about these diagnosis' because in the decision letters this was not mentioned.

No I did not formally claim PTSD 1 yr after diagnosis because I did not have a copy of the exam and was so frustrated at that point that I just threw in the towel. I formally placed a claim in July 2012 and was just awarded 50% PTSD.

I agree with you when you said "

Because the date of their diagnoses was the “factually ascertainable” date that entitlement arose ...in my opinion.,,,even though you had not formally claimed PTSD at that time....."

I am looking into seeing a lawyer.

BigRed

[free_spirit_etc]

From what I am reading you might be able to claim that the PTSD was unadjudicated (i.e. still pending) if you had claimed (formally or informally) any symptoms that could be related to the PTSD. So if you reported the dizziness, forgetfulness, and nightmares in your communication to the VA, you could have an argument that you had an unadjudicated informal claim for PTSD that is still pending. If you reported the symptoms to the VA, and sought to obtain benefits for any diseases that might be manifested by those symptoms, then that could constitute an informal claim.

Actually, from what I have been reading the VA isn't required to give you benefits for something you didn't claim, even if it is diagnosed. That seems odd to me. BUT, you are not required to diagnose yourself. So as long as you file a claim for benefits and list your symptoms, you should be considered to have filed a claim for any diagnosis that stems from that. Even if you misdiagnose yourself, they shouldn't hold that against you. (For instance, if you say your nightmares are the result of a sleep disorder, and the examiner says - No, they are the result of PTSD - the VA should not deny you because you have a different diagnosis than you indicated. You reported nightmares, the nightmares were diagnosed as a manifestation of a diagnosed illness - you have a claim for that illness. If they deny you benefits without addressing that illness, you very likely have a pending unadjudicated claim for it.

http://search.uscourts.cavc.gov/isysquery/505f38d8-9504-4816-9322-dc8818c47da2/3/doc/

***Note - this case cannot be cited as precedent - but it is interesting in the way the case explains it.

"In its decision denying entitlement to PTSD, the Board acknowledged the

diagnoses of
depression and anxiety, but did not discuss them. It was error for the
Board to limit the adjudication
of the service-connection claim for PTSD solely to PTSD rather than to
consider the claim more
broadlyin light of the symptoms Mr. Allen was experiencing. See Clemons v.
Shinseki, 23 Vet.App.
1, 5 (2009) (per curiam order). An "appellant's claim [that] identifies
PTSD without more [] cannot
be a claim limited only to that diagnosis, but must rather be considered a
claim for any mental
disability that may reasonably be encompassed by several factors,"
including "the information the
Secretary obtains in support of the claim." Id. Therefore, on remand, the
Board must readjudicate
the matter and consider the claim not solely as a claim for PTSD but
rather as a claim for the
"affliction [Mr. Allen's] mental condition, whatever that is, causes him."
Id."

<snip>....

Mr. Allen next argues that VA failed to recognize and adjudicate a

separate claim for service
connection for anxiety and depressed mood that was raised by the evidence
of record, and that he
asserts remains pending. He further argues that the Board erred byfailing
to ensure that VA provide
2


a medical examination to determine nexus between the claimed anxiety and
depressed mood and
service.
There is no indication in the record that Mr. Allen ever filed a separate
claim for anxiety and
depressed mood. While the Board erred by failing to broadly construe the
service-connection claim
for PTSD as a claim for any and all mental disorders, which is remandable
error under Clemons, it
does not necessarilyfollow thattheevidenceraisedanentirelyseparateand
distinct claim for anxiety
and depressed mood that remains unadjudicated. In Brannon v. West, 12 Vet.
App. 32, 35 (1998),
the Court stated that where the "record contains no evidence that the
appellant had ever expressed
an intent to seek[] service connection" for the unadjudicated condition, "[
t]he mere presence of the
medical evidence does not establish an intent on the part of the veteran
to seek [] service connection"
for the unadjudicated condition.
Because Mr. Allen did not express an intent to seek service connection for
anxiety or
depression by filing a claim for these conditions, they are not a separate
claim that remains pending
because of the Board's failure to adjudicate. They will instead be
considered on remand as part of
the claim for mental disabilities, which Mr. Allen filed as a service-
connection claim for PTSD.
Therefore, because there was no separate claim specificallyfor anxiety or
depression that was raised
solely by the evidence, it was not error for the Board to fail to order a
separate medical examination.

Edited September 21, 2013 by free_spirit_etc

[free_spirit_etc]

I really think the VA should be required to send the C&P exam results to the veteran with their decisions. It would be a different matter if the ROs could be trusted to accurately report what the C&P exams actually say.

On my husband's 2003 claim for headaches, the VA examiner did xrays of his sinuses. He said one of my husband's types of headaches was actually a manifestation of chronic sinus disease. He also pointed out that an x-ray in 1982 showed ethmoid and maxillary inflammatory changes of the chronic type.

My husband served from 1970 - 1998. About half of my husband's treatments in service were for sinus conditions, post nasal drip, nasal congestion, etc. The C&P examiner clearly pointed out that the condition was diagnosed as chronic in service (on the basis of the 1982 xray that showed inflammatory changes of the chronic type.)

The SOC said "The VA examiner gave a diagnosis of chronic sinus disease and cervicogenic headache secondary to hypertrophic degenerative osteoarthritis of modest degree. A review of service medical records showed diagnosis of sinusitis in September 1982. A chronic disability with sinusitis is not shown by the service medical records.

What a crock!

edit to add:

Well damn... digging deeper. They also didn't bother to tell him that the hearing C&P diagnosed him with mild to moderate intermittent tinnitus.

How in the world can they expect veterans to file claims within one year of an exam when they don't bother to tell them what they have been diagnosed with, or even twist it.

Edited September 21, 2013 by free_spirit_etc

[BigRed]

Free_spirit_etc

Thank you for the great info. I have written several lawyers but think that I will wait until my 2005 NOD is decided. It will be 3 years in April 2014 and hopefully a decision will be made around that time. I still have until September 2014 to NOD the PTSD and Chronic Sinusitis so I will wait.

I was give a Gulf War General Medical exam for my 2012 claim of PTSD and Chronic Sinusitis. It lists all information regarding Gulf War symptoms etc and my GP thoroughly checked everything checked off the necessary boxes for specialists to complete DBQs and theses specialists included nexus statements. This was not done during my 2005 exams - no Gulf War Med. Exam, no DBQs, no nexus statements. If I would have had a Gulf War Med. Exam done back then I would have been service connected back then.

I understand your frustration 100%. It is sad and a travesty that we as Vets have to fight wars and then fight another war to disability benefits. In 2005 I was at the bottom of the barrel, depressed, in pain, aggressive, suspicious, paranoid you name it and when I was denied I just couldn't handle it anymore. I was not at all knowledgable of the VA system and did not appeal. Luckily my uncle who fought in Vietnam and had gone through the exact same rollercoaster, talked to me and slowly pulled me back into reality. I feel so sorry for so many of our brothers and sister Vets who don't have anyone to pull them back, I feel for them.

BigRed

Edited September 21, 2013 by BigRed