70% With Iu For Depression C&p Follow Up Never Occured.

[Ancientwolf13]

I'm not sure if this is the correct place for this question, feel free to move this post. I am in an odd situation with the VA Disability. I am rated 70% for Depression since Feb 2006 with IU to 100% since Feb 2008 after worker rehab failed and deemed my condition makes me unemployable. I have been on SSDI for Depression since June 2007. I recently went to try to get a homestead and vehicle tax exemption and I was denied stating I wasn't listed as permanent so they said to contact the VA to see if it was since I have been out of work since my discharge in Feb 2006. I contacted the local VA rep they sent me to DAV who sent me to a Person at the regional VA office about P&T, they were public affairs or some title like that. They said that I was supposed yo have a C&P appointment a few years ago in 2011, but they never scheduled me and she has no idea why they didn't. She said that for the Tax purposes I needed to be P&T. She then said I can try for P&T, but I could have my rating decreased since I have been listed as temporary all these past 7 years or I can go with option 2 and not say anything and just put up with collecting 100% I have been. She then said if I went the P&T route to have the VA doctor I'm seeing note everything is still occuring from my letter from the first and only C&P I've had, but I still may be reduced. It is confusing since I haven't had any straight answers if I'm eligible for P&T or why C&P never scheduled me the follow up. Is this a normal situation and I'm not sure what to do. I was planning on moving on my own since I don't like living with people, but knowing my income is in limbo and no straight answers my hands are tied. Should I try for P&T since I have been beeing treated for so long with no improvement according to my doctor?

[Berta]

PS

You might have a CUE claim potential if the C & P exam did not say what VA inferred as to likelyhood of improvement with a full medical rationale.:

“The Board was and is precluded from rendering its own medical judgments of the Veteran's overall level of psychiatric impairment. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (VA adjudicators cannot substitute their own medical determinations for those of medical professionals).”

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp12/Files2/1213912.txt

Colvin goes for any type of disability.

I would whip Colvin out in a heartbeat, and file CUE ,using it as evidence, if VA had no medical rationale for that "likelyhood "statement.

[Ancientwolf13]

That statement was after the where it stated reasons for my rating.

The decision was made in Novevember 2009 and retro'd to 2006.

I've called again today and asked about P&T and the C&P appointment and they said yes try for P&T given my current rating and that I have IU. With the appointment they are not sure why it never happened except that maybe given the nature of my treatment and disability that they felt there was no need to adjust my rating. They may give me a new C&P appointment with the P&T. They didn't file for a rating increase though to force a C&P.

How would I know if I need to apply CUE?

[Ancientwolf13]

Also I'm not sure if this applies to anything but I was given a honorable discharge under Chapter 5-13 AR 635-200, it is noted I was considered sound during my entry into Active Service.

[Berta]

You should formally write to them asking them for consideration of permanent and total.

Also you could refer them to and enclose a formal CUE claim.

“How would I know if I need to apply CUE? “

If the VA made a legal error in the decision (I assume this decision was not appealed? )by their failure to apply established case law, such as within Colvin V Derwinski.

“You might have a CUE claim potential if the C & P exam did not say what VA inferred as to likelyhood of improvement with a full medical rationale.: “

CUE involves

1. an unappealed decision

2. the decision contains a legal error

3. the legal error manifested an altered outcome for the veteran.

(meaning, but for the CUE ,the veteran would have received more retro....in your case no retro but many ancillary benefits))

We have considerable info on CUE claims in our CUE forum here.

Based on what you stated....that VA gave no medical rationale for the 'likelihood of improvement” statement, I suggest, if you chose to file a CUE to do it like this:

File it with the same VARO that made this decision..

.Tell them you fully believe VA made a clear and unmistakable error, under auspices of 38 USC § 5109A

in their (2008? ) (put date of the older decision here) decision by failing to apply basic VA established case law as found within Colvin V. Derwinski , 1 Vet. App. 171 (1991)

and you have enclosed as evidence ,a copy of page 2 of this PDF from NVLSP which states:

THE VETERANS ADVOCATE • JANUARY–JUNE 2008

Use this article as a reference tool to become more

familiar with the leading cases in veterans law and how

to use them. They should help you maneuver through

the VA claims adjudication process and obtain benefits

as quickly as possible.

VA Can’t Base Denial on its Own

Medical Judgment

Colvin v. Derwinski

, 1 Vet. App. 171 (1991)

Colvin

stands for a now deeply embedded and fundamental principle of veterans law—

the VA may use only

independent medical evidence to support its benefits

decisions. The VA may not use the medical opinion or

judgment of the VA rater or BVA Veterans Law Judge to

support a decision.

Add to this claim that their clear and unmistakable error ,in substituting their medical judgement for that of an appropriate medical practitioner's has manifested an altered outcome for you since the time of the alleged CUE because you were not properly considered for a Permanent and Total Status and thus deprived of all ancillary benefits that would come with that designation, fully warranted by the evidence in VA's possession at the of the decision that holds this alleged CUE.

Add that you ave enclosed a formal claim for Permanent and total status as well as the CUE claim.

Sign, Copy and mail all with proof of mailing to your VARO.

(in your case this does not mean additional retro but it does mean additional ancillary benefits)

Colvin is a COVA decision and in 3-4 PCs away from me,so you don't need to 'whip that out; anyhow as VA is very unlikely to disregard ANYTHING from NVLSP.I owuld just send them page one and two of the PDF and highlight with magic marker the Colvin stuff.

I have a CUE claim in progress on basically the same basis as I found a CUE in my Nehmer AO IHD award letter when they awarded a past CUE claim I had, ( it was 3 CUEs they committed handled in one decision) but then they committed CUE in the CUE claim award statement.

They paid me ,under CUE , 6 months of 100% 1151, yet the evidence they had clearly supported a finding of almost 2 years of 100% Permanent & Total.under 1151 regarding my deceased husband.

Numerous entities to include the former UnderSecrtary of the VA, A VA Neuro, the Dept of Higher Education (Student loan waiver) , Voc Rehab VA, etc etc documented in writing that the veteran was P & T due to his 1151 stroke from Aug 1992 to his death in October 1994.

http://www.nvlsp.org/images/uploads/TVA_JanJun08sample.pdf

[Berta]

ooops put " in the statement regarding the "likelihood" of improvement, after this:

Add to this claim that their clear and unmistakable error ,in substituting their medical judgement for that of an appropriate medical practitioner's has manifested an altered outcome for you since the time of the alleged CUE because you were not properly considered for a Permanent and Total Status and thus deprived of all ancillary benefits that would come with that designation, fully warranted by the evidence in VA's possession at the of the decision that holds this alleged CUE.

And enclose as evidence a copy of that older decision too, in which you highlight that statement in the narrative.

List all of the enclosures of evidence at the end of the claim.

[carlie]

I do not get a yearly statement from the VA and there is no mention of Chapter 35 benefits.

" 9434 Depressive Disorder

Service Connected, Gulf War, Incurred

Future exam January 2011

70% from 02/23/2006

Combined Evaluation For Compensation:

70% from 02/23/2006

Individual Unemployability Granted from February 27, 2008

Have you been submitting a yearly Employment Questionnaire (21-4140) since your IU was granted ?

http://www.vba.va.gov/pubs/forms/vba-21-4140-1-are.pdf