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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Most Common VA Disabilities Claimed for Compensation:   

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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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R3dneck

Need Advice

Question

I filed for PTSD in 1995 and was diagnosed at that time of the C&P with Dysthymia with prominent features of anxiety, so PTSD denied. I also was denied for "Memory loss" - Service connection for memory loss is denied because this disability is determined to result from a known clinical diagnosis of dysthymia, which neither occurred in nor was caused or aggravated by service. I did not appeal as I was very uneducated in the rules and regs for VA. After many years later and many problems later that arose from my issues I finally came back to VA for help. I recently was diagnosed by a VA psychologist for PTSD as I have been attending all visits as scheduled for a few months now.I am taking all meds as required as well. I will be starting the 12 week CPT program in a couple weeks to try to improve my problems in dealing with all this. My question is: Do I have a cue or is it just a reopen? Should I try to reopen or cue now or what is the next step for me? Thanks in advance.

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I definitely think you should re -open the claim with the PTSD diagnosis you have now.

The new (2010) PTSD regulations are here in our PTSD forum.:

You have the required VA MH diagnosis of PTSD.

If you dont fall into the “ hostile activity” part of the regs, then you will need to prove your stressor that caused the PTSD.

If you have the CAB,CAR, or PH on your DD 214 the VA should concede your stressor.

When you get a VCAA letter, send VA whatever they need (copies and get a proof of mailing)

When the VA awards your PTSD claim ( I am hoping they will),then you can consider the CUE claim.

When the original claim was denied and then missing service records have shown up since that would have been probative to the older claim, you might have a basis for a 38 CFR 3.156 claim,in order to obtain a better EED and more retro.

I am also thinking, and hope others chime in that, with proof of the new diagnosis you could even file the CUE now.

Why not file both at the same time.....I sure would.

Can you possibly scan and attach the older denial as to their Reasons and Bases for the older denial?

I assume it was due to the wrong diagnosis but there might be other points in it that cause legal error.

The legal error at this point,in my opinion, is the wrong diagnostic code on the rating sheet and since that wrong code (for the wrong diagnosis) caused you monetary harm, (assuming the stressor was provable) then that would be a valid basis for CUE claim.

Wrong diagnostic codes have caused a very valid basis for many CUE claims.

My SMC 1151 CUE ,in part , involved wrong diagnostic codes, totally 80% NSC

Once the 1151 issue was granted, and the diagnostic codes were changed ,the CUE award became 100%.plus SMC

any thoughts here if this vet should file re open and also CUE at the same time?

I would say keep them as separate issues and refer to the separate claim in each claim.

A wrong diagnosis is not a CUE claim.

In some cases it can be basis for 1151 claim.....

The diagnostic code however, once the rater types it into the rating sheet, is a Legal error ,if the Diagnostic code ,as in your case in the denial, caused you a loss of compensation ,because it wasn't DC 9411 and should have been.

It should be simple to prepare the CUE.claim...plenty of CUE info and there are templates for these types of claims in our CUE forum.

From what I see here, along with the older decision, the CUE only needs to have a few briefs paragraphs.

If you definitely can prove the stressor, and can attach that decision here, with the DC they used and the date of the decision , I can write and post the CUE claim for you to use.

Edited by Berta

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Sorry it took so long. It took me awhile to figure out how to get these on my computer.

If this isnt what your wanting please let me know. They may be out of order sorry.post-12477-0-18167800-1383496814_thumb.gpost-12477-0-63736100-1383496837_thumb.gpost-12477-0-77309400-1383496856_thumb.gpost-12477-0-60891700-1383496878_thumb.gpost-12477-0-81805600-1383496908_thumb.g

Edited by R3dneck

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"I filed for PTSD in 1995 and was diagnosed at that time of the C&P with Dysthymia with prominent features of anxiety, so PTSD denied"

I see the diagnostic code here was 9405 but I didn't see any rating percentage given.

Since you did have a C & P exam that rendered the DC, the VA should have given you a NSC percent on the rating sheet.

The rating at that time ,if the decision is CUed , would be significant to preparing a valid CUE claim.

What I mean is ,say they VA gave you

Dsthymia with anxiety DC 9405 rated at 30% NSC in 1995

However the diagnosis has been changed to PTSD , and with proof of your stressor, the VA could award you maybe 30% or more SC for PTSD in regards to your newer claim. I am just making a hypothetiocal Percentage guess here....

That prior rating would mean that the VA erred in using the wrong diagnostic code in 1995, and that error manifested an altered outcome for you....

which was the 30% comp from 1995 , that their error prevented you from getting.

There is no rush on the CUE claim because, you would need an award for the PTSD to file a CUE on the older decision.

I think I jumped the gun because I think your should definitely re-open the claim and that you will get the PTSD award hopefully, and then a CUE would be valid.

But assuming the VA does grant the PTSD claim, then this would be a good CUE template to use.(file it with the same VARO who made the older decision)

This is a claim Under Clear and Unmistakable Error

I have enclosed copy of your 1995 decision, denying me for PTSD compensation.

My diagnosis at that time was Dysthymia with anxiety DC 9405 with a rating of ( put the rating NSC percent here)

" I recently was diagnosed by a VA psychologist for PTSD as I have been attending all visits as scheduled for a few months now.I am taking all meds as required as well. I will be starting the 12 week CPT program in a couple weeks to try to improve my problems in dealing with all this."

Since the VA has awarded me for PTSD with a rating (as of ,,date) at ...% service connected on ..... (enclose copy of the award letter I hope you will get,) the VA had manifestedly altered the outcome of my prior claim as enclosed, to my monetary detriment ,by using the wrong diagnostic code for my mental disability due to my service.

I respectfully request that this error be corrected.

Sign, copy and mail with proof of mailing.

Others will chime in here soon I hope.....

If that older decision did contain a NSC percent (don't know why It wouldnt) and your stressor is not an issue you feel will be a problem for VA, then maybe best to file this now along with the re-opened claim.

I have mentioned the stressor because you do have the VA MH diagnosis of PTSD but that means that part of the claim is good.

You need to make sure you fall into the stressor category in the new regs,or if you need proof of the stressor now is the time to consider getting that proof because without that proof, VA can deny the re opened PTSD claim and there would be no legal basis for the cue claim.

Edited by Berta

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Im kinda lost now. The 30% was for the renal stones. On page 5 it lists that and the others are everything they denied.

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R3dneck,

I would suggest you file to re-open - as you now have new and material evidence concerning your PTSD claim. Your first rule of order is getting the condition SCed, as well as getting appropriate treatment.

In the meantime, you can certainly work on looking up information to see if you can be granted an earlier effective date on your claim. So say, you file this month -- and are granted the benefit effective November 2013, there might be something in your records that will help you get an earlier effective date.

I am not seeing a definite CUE at the moment. But that doesn't mean there isn't one. But you can always bring a CUE up later, if you have evidence to support it. But the CUE would have to be that the RO made a clearly erroneous decision based on the evidence in the record.

So - I would suggest that you re-open your claim now. You have plenty of time to argue an earlier effective date or CUE later. As you have a diagnosis of PTSD by a VA psychologist, getting SC shouldn't be difficult as long as they connect it to your service.

Do you have a copy of your C-file? Exam reports? Etc. You won't need those to file the claim. But you will want to get a copy of everything for your records.

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