ptsd Jurisdiction Of C&ue

[RodnAnn]

My Vietnam veteran husband is at 50% SC for PTSD & has been since 2008. 1990 was the first time he filed a claim for PTSD & he let that claim become final. Again in 2002 he filed a claim for PTSD & when he was denied he did not appeal and that claim became final. At the time of the 2 claims mentioned we lived in Alabama. So these claims were decided in Montgomery, AL. After moving to Mississippi, he got his claim re-opened in 2008 by submitting new and material evidence. That claim was decided in Jackson, MS. In July 2012 he filed for an EED on his 2008 award for PTSD( which at the time was at 30% ) to include C&UE & to extend back to 2002. At the same time he had an appeal at the BVA for an increase to 100% for the PTSD. When they ruled on the appeal in November of 2013 they mentioned the C&UE:

" the issue of whether clear and unmistakable error was committed in the prior final rating decisions of November 1990 and November 2002 has been raised by the record , but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it and it is referred to the RO for appropriate action."

My question is "Has anyone experienced a similar situation and can anyone give us any insight to where the claim for C&UE ended up?" We don't know where to go for answers and we really don't understand what this statement means. Is the claim for C&UE at the regional office in AL or MS?

[carlie]

Side bet, Carlie--$20 says Jackson does the CUE.

a

cp

Can I get a dirty martini with that bet ?

You may well be right on this, but I can't take the bet.

I thought I remembered part of the CUE filing criteria to be

that it needs to be submitted to the AOJ.

Maybe someone has time to look it up and paste it here.

Right now my time is very limited.

[RodnAnn]

Berta,

He did not get a DD 215. He says he does not know what that is.

Yes, the PH was on his DD 214 in 1990 and in 2002.

The PH was for a shrapnel wound and yes he does still have scarring.

I always assumed the fact the BS was not on his DD 214 to be the reason they considered it new and material evidence and allowed it to re-open the 2002 claim in 2008.

[RodnAnn]

I just discovered how to attach a file!

This is what I could find to upload. I apologize for the way the 2008 one is marked up.

2002 decision.pdf

2008 decision.pdf

[FormerMember]

CUE. The Purple Nurple was a matter of record and apparently not before the adjudicator. As it was the seminal item that granted PTSD under 1154(b) in 2008, it would have manifestly have changed the outcome of the 2002 decision. It is not mentioned in evidence in 2002 but was clearly on the DD 214. The Bronze Star w/ V has nothing to do with this. The grant is purely based on the PH. VA is too easy to beat. They screw these things up so badly and leave a trail of florescent paint to the error. Here, they out and out admitted that they finally noticed it.

AOJ, in the context of "Agency of Original Jurisdiction" will always be the VARO who tucked the last Form 8 into the c-file certifying it as complete to the BVA for appeal. The rage out here is Pomegranate Martinis with Cointreau. And yes, I would concede one.

[RodnAnn]

So, here is the latest development in my husband's claim for CUE. After sending form 21-0845 to the VA and waiting a week for them to add it to their file, I was finally able to talk to someone on the 800 #.( Reason for this was husband has no patience to deal with long phone conversations.) He informed me that according to the RO in Jackson, MS the appeal had included the CUE and that it had been allowed and compensated for. What they believe they did was to give my husband an eed for a 2011 decision in which they allowed an increase to 50% for PTSD.That eed was for August 2008 and they compensated him the additional 20% above the original 30% and compensated him the back pay. I now know that it was a mistake to send the claim for CUE while he had an appeal pending at the BVA. Apparently they lumped it into the appeal and decided it without even reading it all the way through. If they had read it they would have known he was asking for an eed back to a 2002 decision. I am considering re-writing the claim for CUE and sending it to the Jackson MS office. I have located a copy of the Dr report from Al when the PTSD diagnosis was first made. The dr was a VA dr at a primary care clinic in Jasper, AL. Also when the BVA decided the claim, they assumed the dr was a private physician and made a statement to that effect in the decision. As if to say it was not verifiable. The diagnosis is a matter of record at the VA in B'ham AL. If I were to write the claim for CUE again I intend to include a copy of the 2002 doctor report. Any advice on this?

[Berta]

"After sending form 21-0845 to the VA and waiting a week for them to add it to their file, I was finally able to talk to someone on the 800 #.( Reason for this was husband has no patience to deal with long phone conversations.) He informed me that according to the RO in Jackson, MS the appeal had included the CUE and that it had been allowed and compensated for. What they believe they did was to give my husband an eed for a 2011 decision in which they allowed an increase to 50% for PTSD.That eed was for August 2008 and they compensated him the additional 20% above the original 30% and compensated him the back pay."

This might sound abrupt but
do you have any documentation from the VARO yet as to what Peggy said ( ooops I mean what the 800# rep said )?

Have you tried to get what he said (and he might be right) verified with an IRIS request or a letter from the VARO explaining what he said.?

" I now know that it was a mistake to send the claim for CUE while he had an appeal pending at the BVA." Not necessarly.....

" Apparently they lumped it into the appeal and decided it without even reading it all the way through. If they had read it they would have known he was asking for an eed back to a 2002 decision. "

In February you stated this:

“In July 2012 he filed for an EED on his 2008 award for PTSD( which at the time was at 30% ) to include C&UE & to extend back to 2002 .”

Was the CUE claim filed as a distinctly separate Issue from the EED appeal?

As Carlie stated, the CUE must be filed with the AOJ who made the alleged error and that part seems right here.

What is the status of the July2010 EED claim? Is this it?:


"What they believe they did was to give my husband an eed for a 2011 decision in which they allowed an increase to 50% for PTSD.That eed was for August 2008 and they compensated him the additional 20% above the original 30% and compensated him the back pay."

Now I am thinking this is what the 800# rep was talking about.........???

Can you scan and attach (cover personal stuff) that decision here?