ptsd Help

[BigRed]

Hello Everyone and thank for all of your help and service. I desperately need your advice because I am at a roadblock. Here is my info:

Filed Claim April 2005 - Throat condition, nasal infections and headaches, skin disorder

Denied December 2005

*C&P exams were received by VA on December 15 but never used in December decision. PTSD was diagnosed as cause of headaches and nasal polyps were diagnosed during these C&Ps. The doctors linked both to the Gulf War. I did not send a NOD and that was that.*

August 2010 I opened a new claim for Throat condition, nasal infections and headaches, skin disorder, CFS and Fibromyalgia.

Denied April 2011. Sent NOD 1 April 2011.

December 2011 VA realizes that the C&Ps from 2005 were never used in the 2005 decision and sent me another rating decision letter stating they have looked at the C&Ps from 2005 and the denial is confirmed and continued. Isn’t this VA cueing themselves?? They list the C&Ps in the decision letter but fail to mention the diagnosis of PTSD and nasal polyps. I disagree with VA and think that service connection should be granted back to original claim date of April 2005 and send NOD 2 May 2011.

June 2014 I receive a DRO Review Officer decision letter granting sc for PTSD, throat condition, nasal infections and headaches, skin disorder with an EED back to August 2010. CFS & Fibro were deferred.

My question is what about NOD 2 requesting the EED. It is listed in eBenefits under historical claims as if it has been resolved but I have not received anything in writing. Doesn’t VA have to legally address all NODS? I have sent my VSO 4 inquiries about this but he won’t return my calls etc.

Thanks,

BigRed

[Berta]

I suggest you send them an IRIS request as to the status of the NOD on the EED.

Tell them what you told us here and ask for a status on the defered issues as well...They might be working on the deferred claims first.

Edited August 19, 2014 by Berta (see edit history)

[BigRed]

Hi Berta,

I have sent an IRIS but not received an answer as of today.

I just received an answer from my VSO as to the whereabout of NOD2. He says that the June 2014 decision is for NOD 1 and 2 combined and the 2 deferred issues from NOD 1 are still pending (CFS & Fibro).

Can they do that, combine 2 NODs especially if one is looking at issues from C&P exams from 2005. They listed all items as being fully granted and having an effective date of NOD 1 - August 2010. I don't have a good feeling about this becasue they have not mentioned NOD 2 at all in the decision letter.

BigRed

[Philip Rogers]

It's just the VA's latest way to screw the veteran/claimant. jmo

pr

[Berta]

"December 2011 VA realizes that the C&Ps from 2005 were never used in the 2005 decision and sent me another rating decision letter stating they have looked at the C&Ps from 2005 and the denial is confirmed and continued. Isn’t this VA cueing themselves?? "

Yes , but it didnt help you.

"They list the C&Ps in the decision letter but fail to mention the diagnosis of PTSD and nasal polyps. I disagree with VA and think that service connection should be granted back to original claim date of April 2005 and send NOD 2 May 2011."

If the medical evidence was the same in 2005 as in August 201O, I would think you have basis for a CUE on the 2005 decision

I dont know how the VSO arrived at his opinion.

Did the VA in the decision give any reason at all as to how they determined the EED?

You stated 'send in NOD 2 in May 2011' but I dont understand how that could be on the December 2011 decision......??? is that a date typo?

One of the most powerful legal arguments I have made for my own CUE claims is proving their violation of 38 CFR 4.6:


"§ 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."

http://www.law.cornell.edu/cfr/text/38/4.6

It sure has worked for me, when the VA failed to consider 'every element affecting the probative value' of my evidence.

And in my case,in one CUE I won in 2012 ,I expanded to include 3 CUEs in the same CUE request that occurred in the same decision.
And another CUE I filed shortly after that one was based on a complete lack of diagnostic code and rating in the above same decision.

So not only does 38 CFR 4.6 have incredible power, if the CUE arises from their failure to consider probative evidence, it can be expanded to include CUEs that arise on the rating sheet, (a legal document) that were detrimental to the claimant and ,.at time of that Cued decision, manifested an altered outcome to the claimant....meaning no retro yet the evidence, if properly considered would have supports a percentage at least at 10% or more and a retro award.

Do you have copies of the C & P results done in 2005?

[Berta]

just to add.....

The rating sheet is a legal document.

I say that because the percentages given are determined by the VA Schedule of Ratings in 38 USC and 38 CFR as well as the Diagnostic codes.

[BigRed]

@Berta

Did the VA in the decision give any reason at all as to how they determined the EED?

Yes, VA says that August 2010 is the date of reopened claim.

You stated 'send in NOD 2 in May 2011' but I dont understand how that could be on the December 2011 decision......??? is that a date typo?

Yes it should be 2012.

I have attached the C&Ps - ENT, Psychologist and Neurologist.

BigRed

INFO.pdf

Edited August 19, 2014 by BigRed (see edit history)

[Berta]

"Yes, VA says that August 2010 is the date of reopened claim."

Ok , that means the only way to retrieve any more potential retro due to the EED , is to file a CUE claim on the older decision.

Although CUEs depend on established medical evidence, I certainly sent in copies of med recs with my CUEs that supported

the established medical evidence that VA had. .

If the medical evidence was the same in 2005 as in August 201O, I would think you have basis for a CUE on the 2005 decision BUT I could not see any dates on the pdf stuff
nor what I expected to see.

I guess we need to see the 2005 decision. as to their reasons and bases..and then C & P results.....I don't think those records you scanned will help much regarding a CUE.



But others will possibly see something I am missing and will chime in here.

[Berta]

Did they question your stressors in the 2005 decision?

If you have it now as SC, you certainly didnt get PTSD overnight......

Did the 2005 decision say they tried to confirm your stressors with JSRRC but could not get it verified?

I hope others opine here too.

I guess we need to see the 2005 decision. as to their reasons and bases..and the C & P results.....I don't think those records you scanned will help much regarding a CUE.

"They list the C&Ps in the decision letter but fail to mention the diagnosis of PTSD and nasal polyps."

THAT would be where the CUE lies I think.......the C & P for PTSD might have caused a violation of 38 CFR 4.6 if it was supportive of the claim.

[BigRed]

Did they question your stressors in the 2005 decision?

If you have it now as SC, you certainly didnt get PTSD overnight......

Did the 2005 decision say they tried to confirm your stressors with JSRRC but could not get it verified?

I hope others opine here too.

I guess we need to see the 2005 decision. as to their reasons and bases..and the C & P results.....I don't think those records you scanned will help much regarding a CUE.

"They list the C&Ps in the decision letter but fail to mention the diagnosis of PTSD and nasal polyps."

THAT would be where the CUE lies I think.......the C & P for PTSD might have caused a violation of 38 CFR 4.6 if it was supportive of the claim.

Berta

The dates for the C&P's are 2005 and 2006.

Did the 2005 decision say they tried to confirm your stressors with JSRRC but could not get it verified? No, the 2005 decision did not mention or list the attached C&Ps at all. I am a gulf War Veteran and the doctor's were also not sent the Gulf War Medical Guidelines so the doctors did not state whether it was "at least likely as not."

"They list the C&Ps in the decision letter but fail to mention the diagnosis of PTSD and nasal polyps." This was in 2010 when VA CUE'd itself. Above was a typo, it was December 2010. VA sent me a decision stating that it overlooked the C&Ps but did not mention the PTSD diagnosis and nasal polyps. Note: Allergic Rhinitis with nasal polyps is rated at 30% .

BigRed

[Berta]

BigRed....

Without seeing the older decisions, or entire C & Ps ,it is difficult to know what you should do.

I suggest trying to have a Vet Rep look over the older decision, the newer one, and the C & P exam results

"so the doctors did not state whether it was "at least likely as not.""

Did they state it was 'not' likely with a medical rationale for that?

I am not familar with Gulf War Medical Guidelines.

I am just familar with this:
http://www.publichealth.va.gov/exposures/gulfwar/medically-unexplained-illness.asp

Something sure does seem wrong with all this and a good vet rep should look over the paperwork you have.

[Army247]

I suggest you send them an IRIS request as to the status of the NOD on the EED.

Tell them what you told us here and ask for a status on the defered issues as well...They might be working on the deferred claims first.

Test, I'm trying to add Berta as a friend so I can send you a personal message.

[carlie]

Test, I'm trying to add Berta as a friend so I can send you a personal message.

Berta does not accept private messages.

I replied to your message.