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Navy04

Is This A Possible Cue, And If So What Do I Do?

Question

I submitted an FDC in Sep 2013 for an Increase in PTSD. I just downloaded my PTSD Review C&P exam report on another post. My question is that the VA lowballed my PTSD in 2012, because the Navy was Medically Retiring me anyways. I did not know much about the VA side at the time. In my C&P exam report, the Examiner put in a note in the report that states "

Veteran continues to meet both DSM-IV-TR and DSM-5 criteria for three

mental health disorders, Posttraumatic Stress Disorder (PTSD), Obsessive

Compulsive Disorder (OCD), and Major Depressive Disorder (MDD). Veteran

was orginally service-connected 30% for PTSD in the spring of 2012. Per

report in Claims File, prior C&P Initial Evaluation for PTSD dated

5/22/12

noted dx of PTSD, OCD, and Depressive Disorder with symptoms which are

associated with 70% impairment and a GAF score of 53.

I Retired 2/25/14. Now would this be a CUE, or do I rush and try to submit an NOD this week, or what should I do. If the VA would have rated me the Proper 70%, I would have been 90% since May 2013, and not the current 80%. So there would be probably over $2000 in back pay. What is the best action on this? Thank you guys for all your help in advance.

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Did you appeal the initial 30% VA rating? If you appealed and got 70% with the same evidence I think I might file an NOD and ask that my EED by 2012 for the 70%. Unless the 2012 rating was a final decision you can't file a CUE. I am not really sure about your case since you were still active duty in 2014. I was discharged before I ever filed a claim. Now that claim rating became final and I did file a CUE on that.

John

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noted dx of PTSD, OCD, and Depressive Disorder with symptoms which are

associated with 70% impairment and a GAF score of 53.

I would get a copy of the statement that the examiner is talking abt, and see if it stands on its own, and what date is on it. If its strong, you can send it to the RO with a copy of 38cfr regs, that say what the percentage should be. The fact that the examiner took on that role, and said a percentage tells me the examiner noticed they lowballed you as well. So I would try to get while the getting is good, and get the evidence on record. I would try to push them into Cue without calling cue on them if that makes sense. They dont like to be pusjed around it seems, but if you show them where they dropped thier ice cream sometime they will go pick it up

also ask them to give you the codes they used when they decided your claim, along with the corresponding medical evidence.

see ... now your pushing them into a corner, and giving them no place to run, like they tried to do you.

Edited by 63SIERRA

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You can ask the VA to call a CUE on themselves, but I am not sure you have a CUE. The rules for winning a CUE are very different than for winning a regular claim. The first thing the VA usually does with a CUE is deny it. I have one that is 7 years old and sitting at CAVC for a ruling. Remember decisions have to be final to file a CUE.

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John and Sierra thanks for the info. I was Active Duty in 2012 when I went thru the VA C&P exams. I was medically retired Feb 2013, and claim became SC80% final in April 2013, and began to receive pay May 2013. I am thinking that if the VA gives me my 100% in the next few months for my Current FDC, which I know they will, then I will just leave it be, and be happy in the back of my mind, that the VA does screw us in the end. I would much rather have the 100%, with the extra $1300 increase, and the $105 that they will grant me for SMC-K, loss of a reproductive organ. Thanks again, you guys are the best.

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