ptsd Running Out Of Energy

[WVSERVER]

I am running out of energy to fight the VA. Every contention that I was denied on due to no manifestations in service records is actually in my service records. When I requested my c-file I found more then enough records that pertained to my denied contentions. There are four contentions, Fibromyalgia, Re-accruing Major Depression with anxious distress moderate GAF 50 never higher than 52 in the last 8 years (Doc is currently marking my records RO on PTSD I don’t care what they call it), Bulge in C-4,5,7 and plantar fasciitis.

I filled a CUE because I missed my 1 year mark, my Ro has also opened up an Authorization Review looking at the records that were not considered yet. The Cue is new the Authorization Review has been setting in the under review phase for a year now.

Sorry about the negativity I just need a place to vent as my depression and Fibro get wore, it becomes harder and harder to stay working in my choosing profession

[Guest]

The crazy one here.

Of course Asknod and Berta and Carlie are the Gurus of Cues but Cues takes so long and they are so hard to win. Since you have already filed a Cue you may look into getting a lawyer if you have not already. Now with that said, at the same time you can open a claim stating you have found new records new evidence. What this will do is VA will process it as new evidence an your claim should be granted based on it or VA will deny it based on the fact that it is duplicate evidence already in your file which will help your Cue when it finally get to BVA and or cavc. Funny thing happed to my claim. BVA remanded my claim twice to the RO to correct their decision and when the RO denied my claim the third time BVA denied my claim and I had to get a lawyer and when my claim went to cavc it was remanded back to BVA and then BVA granted my claim, it only took fourteen years. Now I am fighting the percentage RO gave me.

[Berta]

CUEs are hard to win,but if they violated 38 CFR 4.6 in your case , then a CUE is in order,if you are still within the appeal period...if it manifested an altered outcome at time of alleged CUE. (meaning the medical evidence was established and in VA's possession at that time and would have warranted at least a 10% rating.
" 4.6 Evaluation of evidence.
The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."


But I have never seen that regulation used for a CUE after an unappealed denial at the BVA. In that case, if there has been a CUE committed, the rating sheet and SOC would reveal if a valid CUE occurred.

Then again....
"I filled a CUE because I missed my 1 year mark, my Ro has also opened up an Authorization Review looking at the records that were not considered yet."

So if it caused them to do a review, that is a Good thing!

This reg is often the best way to submit evidence for a re-opened claim in similar circumstances.

38 CFR 3.156:





§ 3.156 New and material evidence.
(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.
(Authority: 38 U.S.C. 501, 5103A(f), 5108)
(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.
(Authority: 38 U.S.C. 501)

© Service department records.
(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:
(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;
(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and
(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.
(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.
(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.
4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.
(Authority: 38 U.S.C. 501(a))

http://www.law.cornell.edu/cfr/text/38/3.156

[WVSERVER]

This STR Review has now turned into a claim, problem is now they are listing my pervious denied contentions as new contentions and the date of claim as 7-30-2013 when they started the review. All the contention were previously denied due to evidence that the VA had in its possession but missed when rating my initial claim. The claim date should be 3-2011 my original date also C&P exams have been ordered for the 19 of September.

This STR review sit in under review phase for over a year I sent I very detailed message thru IRIS marked as a services complaint listing all of the above plus the fiasco of the Huntington RO denying four contentions stating that there was no manifestation of contentions in service records, then sending said records that showed manifestation of contentions when I filled an FOIA asking for my C-File. IRIS respond at the 14 day mark and stated that the IRIS inquiry was sent to the Huntington RO director for review and reply.

With that being said the STR Review went from under review to prep for decision in a day's time frame, the next day it went back to gathering of evidence and changed from STR review to compensation for type of claim, listing the STR Review and the four contentions as new. With the date of claim being 7-30-2013 as that was the day they opened there review.

I am hoping to upload all the evidence from my service treatment records pertaining to the four denied contentions, plus I am planning on writing and uploading a statement of claim explain the above and that the date of claim should be 3-2011 since this evidence has been in there possession the whole time, I will also look at CFR 38 sec 4 and 3 to see I can get some help from the reg. Plus I will also explain as long as they get the date of claim correct that would make the CUE moot point.

Forgot to mention, I feel positive about this it seem like there trying to get this done in a timely manner as I have never had C&P ordered so fast.

Edited August 27, 2014 by WVSERVER

[CBaker84]

This STR Review has now turned into a claim, problem is now they are listing my pervious denied contentions as new contentions and the date of claim as 7-30-2013 when they started the review. All the contention were previously denied due to evidence that the VA had in its possession but missed when rating my initial claim. The claim date should be 3-2011 my original date also C&P exams have been ordered for the 19 of September.

This STR review sit in under review phase for over a year I sent I very detailed message thru IRIS marked as a services complaint listing all of the above plus the fiasco of the Huntington RO denying four contentions stating that there was no manifestation of contentions in service records, then sending said records that showed manifestation of contentions when I filled an FOIA asking for my C-File. IRIS respond at the 14 day mark and stated that the IRIS inquiry was sent to the Huntington RO director for review and reply.

With that being said the STR Review went from under review to prep for decision in a day's time frame, the next day it went back to gathering of evidence and changed from STR review to compensation for type of claim, listing the STR Review and the four contentions as new. With the date of claim being 7-30-2013 as that was the day they opened there review.

I am hoping to upload all the evidence from my service treatment records pertaining to the four denied contentions, plus I am planning on writing and uploading a statement of claim explain the above and that the date of claim should be 3-2011 since this evidence has been in there possession the whole time, I will also look at CFR 38 sec 4 and 3 to see I can get some help from the reg. Plus I will also explain as long as they get the date of claim correct that would make the CUE moot point.

Forgot to mention, I feel positive about this it seem like there trying to get this done in a timely manner as I have never had C&P ordered so fast.

When I received my disability decision I was denied all contentions except one. After filing an appeal, the DAV noticed and pointed out to me that the dates of their records they reviewed was listed as being 12 years before my birth. I finally called around to enough people that a Coach looked at my stuff, said that, "Oh hell we screwed that up" (lol), and said it would be CUE.

At this point, it seems they closed the old case, and made a new one listing "CUE" as the 'New' Contention. The only problem that I have with this is that older claims are supposed to be processed first. This means that because my claim is newer it's not getting looked at right away - when it should be a case that is over two years old. Looks like they did the same thing to both of us!

[Berta]

"At this point, it seems they closed the old case, and made a new one listing "CUE" as the 'New' Contention. The only problem that I have with this is that older claims are supposed to be processed first. This means that because my claim is newer it's not getting looked at right away - when it should be a case that is over two years old."

I had the same problem, almost.

When Nehmer RO was ready to do my AO IHD death claim, ( it was lost twice by the RO so good thing I had kept checking on that claim via IRIS-that is how I found out the Togus VA lost it = they should have never sent it there) and then the Buffalo VARO lost it)) I was worried that they had lost all of the evidence when they found it, so I resubmitted the evidence and pointed out a CUE I had pending at that point for almost 8 years and one for IHD pending for 7 years.

The SMC CUE was set for BVA transfer but was still at the RO AOJ,so, when I again sent them copies of my stuff , I pointed out to them that these claims were filed prior to my AO IHD claim and they should be adjudicated first and both could impact the AO claim.

The Philadelphis Nehmer VARO did that, and awarded all of these issues in the same decision, so I strongly suggest you make that point to them as well.(in writing, with proof of mailing)...to handle the older claims first.


I also had an issue many years ago (forget which one... I have had so many claims) in which I stated, with a proper decision, the CUE claim would be rendered moot.

I think it was when they made an addition and multiplication error , regarding thousands of bucks , to my detriment.

The Regional Counsel had found an error to the tune of 27 thousand and told them to CUE themselves and I got the money ( and didnt even know what it was for for over a week)and then when I went over the audit myself , I saw that . they had forgtten a whole year of DIC.

I got that retro with a few weeks when I claimed CUE, although it wasnt exactly a CUE,like most we see here or at the BVA, but if Regional Counsel could do that, tell them to cue themselves, so could I.

VA makes MANY ERRORS in claims as well as in retro amounts!!!!!!!

We have to really be diligent about reading over everything they send to us.

The above audit was because they had taken way too much of my DIC for years ( to offset a FTCA settlement)

I appealed that many times but almost gave up . I was starting to prepare a CUE claim on it but the RC caught it when I re= opened my claim on a new basis because I had stated in the claim that VA had killed my husband , I had sent them proof of that from OGC , but they checked what I said with the RC..and had to refund the entire offset anyhow when the re opened claim succeeded.

I have many personal RO decisions here that ALL contain either legal errors or $$$$ errors.

We really have to double check Everything we get from them.

[Fat]

Good advice...........