ptsd Appealing The Effective Date

[Swarthy]

My claim filed in 2007 for PTSD,Sleep disorder, Right shoulder palsy and denied in 2008.

fast forward to now: PTSD was granted back to 2012 with the judge making the 2008 descision final.

In between my 3 contentions on the single claim was split into three different claims each with its own deadlines and i couldn't keep up.

So, I have documentation of all these statements I kept sending in, I have my NODs, request for reconsiderations, request for re-openings, on and on.

It is all legal jargon and I did try to get all these different documents in on-time. In one case I missed the 60 day deadline by 4 days and in another I apparwntly asked for a reconsideration when I should have asked for a re-opening...

Here are a few of the statement's I have received from the VA as my claim(s) were worked- keep in mind, I submitted one claim and the VA split it into 3 (and in these claims my PTSD was changed to "Acquired Psych condition to include anxiety and ETOH abuse" , my claim for sleep disorder was changed to 'sleep apnea' and of course was denied because I have never been diagnosed with sleep apnea- sleep disorder, yes. My rt shoulder palsy was changed to Rt shoulder weakness. And of course was denied. rt shoulder weakness is more of a symptom cause by the severed nerve in my shoulder. and over the years I have been able to get the RO to word my claims to match my diagnoses, instead of re-writing my contentions (I copied the sleep and shoulder diagnoses from my SMR's and my Psych dx from my VA record


(so anyway, I should not have to keep track of all these complicated administrative schedules. In the 7/10/12 statement below it reads, "in review of your correspondence it appears you are claiming PTSD, but it unclear"

Well my claim in 2007, and the denial in 2008 clearly states "PTSD"

I need some assistance in assembling an appeal packet and here is the outline (sorry about the grey hi lighting. I couldn't get the yellow turned off so I changed it to gray.)
original claim:

Received: 11/27/2007 (Compensation)

Claim Closed: 09/26/2008

Disabilities Claimed:sleep apnea (New), right shoulder weakness (New), PTSD (New)

Your Designated Representative for VA Claims: DISABLED AMERICAN VETERAN

Current Status: Complete

1/7/2010 SOC sent to me

5/14/2010 Denial continued as you submitted no evidence

4/20/2010 we received additional evidence that was not associated with the file on 5/14/2010

(I have to check the dates here, I must have them switched or something)

1/23/2012 “We are working on your claim for Psychiactric condition received on 12/27/2011

7/12/2012: “On 6/6/2012, you contacted our National Call center in regards to your pending appeal, upon review of your email correspondence it appears as though you are claiming service connection for PTSD, but it was unclear”

5/25/2011 “In our previous letter to you dated 9/10/2010, we advised you that you were notified of your rating decision on 9/25/2008. This was incorrect. You were actually notified on 9/26/2008. This letter will address that issue.

Also of note, you submitted a statement on 9/21/2010, that indicates you suffer from neck pain due to your right shoulder condition. This letter will also address this issue

10/5/2012: “We received your NOD of our12/20/2011 decision
10/5/2012: “We received your NOD of our 7/29/2011 decision

Who could keep up with this, let alone a person with an 80% disability (70% of it being psychiatric), working part-time, going to school full-time.

[Gastone]

Easy, no but the eventual SC and Retro makes the time and effort so worthwhile. Do you have a VA DX of PTSD? Are you currently being treated by the VA or Non VA clinician for PTSD?

Semper Fi

Gastone

[Swarthy]

Hi Gastone thanks for checking in.

I filed my claim in 2008 and submitted a NOD in 2009.
My claim was reopened on May/2009

My appeal was granted only to 12/27/11.

[jeffperry1134]

I am in a similar boat. I was granted an increase but only back to 2011. I filed my NOD in 2008. I am going to appeal the retro date. Will that stall my increase to 70% and them giving me back pay from 2011? It is worded so weird in the SSOC. It says denied excess of 50% from 2007-2011 then denied excess of 70% from 2011 to present. My POA is unavailable before my 30 day deadline runs out. Would you file the Appeal on the timeline?

[broncovet]

Appealing the effective date may just be the most complex area of Veterans law. This is why many Vets seek a lawyer for it.

The best way, if you are doing it yourself, is to read this over several times, and see if it applies to your case. I first posted this in 2012, Tbird "pinned" it as it was so helpful and important, and its just as relevant 3 years later.

http://www.purplehea...ate ErrorsL.pdf

In summary: Generally, the effective date is the later of the "facts found" or the date you applied. The facts found means the day the doc said you were disabled.

But, there are exceptions:

1. New and material evidence, 38 CFR 3.156

2. New and material SERVICE records 38 CFR 3.156 C

3. 38 CFR 3.110(b) VA fails to inform the Veteran of time limits.

4. INferred and informal claims

5. USC 5110a, with claims for increase.

6. There is a "liberalizing law.

7. Its within a year of your discharge.

Edited March 21, 2015 by broncovet (see edit history)

[Swarthy]

Thanks. I have tried to read that before, but the background 'art' and the text being written in white on a white background make it impossible for me

[Gastone]

Did you get a copy of your PTSD DBQ from 2007? You had sleep issues back in 07-08, have you ever had a VA or Private overnight Sleep Study done? Were you ever DX'd with SA. SA can be SC as Secondary to PTSD if all other possible causes are ruled out and a Sleep Specialist MD/DO puts the Magic phrase "as likely as not" caused by PTSD in his clinician notes.

Semper Fi

Gastone

[broncovet]

Swarthy:

I know that http://www.purplehea...ate ErrorsL.pdf is a little hard and long to read. I have studied this at some length. I will try to convert this to "English" for you.

1. First, see if you have new evidence submitted. (Either service records or other evidence, but it must be important to your case). This can mean an eed under 3.156

2. Next, you do have a right to submit evidence in a claim pending. A claim in appeals is still pending.

3. Check your orignial decision and see if VA gave you the required notices, that is, you must appeal in one year. The one year appeal period does not start until VA says "go" by telling you you have 1 year to appeal. 3.110

4. Check your records to see if you have an informal or inferred claim. Read up on these if you dont know what they mean.

5. Is this a claim for increase ? If so, check your medical records and see if your doc said you had an increase BEFORE you applied for increase.

6. Was there "Veteran favorable" legislation which passed during your claim? Nehmer is a good example, as are heart issues. There are a few more. YOu should get the better of the effective date of favorable legislation or your actual claim, especially if the new law calls your condition a presumptive. (Liberalizing law)

7. Did you just get out of the service less than a year before you applied?

If you have any of these things, you may be eligible for an earlier effective date.

Edited March 21, 2015 by broncovet (see edit history)

[jeffperry1134]

If I could get a letter from my Vet Center assigned therapist that I had back then in 2007 would that be good enough new material or would I need more? I also have a psych eval done by an outside dr. from 2004. I think they already have it but would re-submitting it help too? I would like to appeal the effective date, but not the rating. IS that possible so I could start getting that rating now?

[Fat]

Good advice

[broncovet]

Yes, many Vets appeal the effective date, and not the rating. Feel free to do just that. N and M evidence may just do the trick. If you look under the defination of "new and material evidence" 38 CFR 3.156, you will see that it can not be redundant. If they already have it, it isnt new. This is one reason to order your cfile, to "KNOW" what VA already has becasue we often do not know what evidence VA has, absent a copy of cfile.

For the "material" portion of "N and M" evidence, your "new" evidence should help establish an earlier date. Using the example, below, if you applied in 2006, but the doc did not diagnose until 2010, then your 2007 diagnosis is probative. (Material evidence which affects the outcome) Remember, your effective date wont be earlier than the LATER of the date you applied or the facts found (when the doc said you were disabled), with those exceptions listed above. Example:

Lets say your 2007 (the 2004 private doctor exam is a little more problematic, VA wants their own docs to diagnose PTSD, not outside docs. However, under older regulations that may not have been necessary) exam states you have PTSD, but you you applied in 2006, but did not get a c and p exam until 2010. So, the VA gave you a 2010 effective date based on that c and p exam. Then, you can say..hey wait!!! I had PTSD back in 2007 and here is the N and M evidence showing exactly that. (Assuming they did NOT have the 2007 evidence when you got your rating..remember, if they already have it, it is not new evidence).

Edited March 21, 2015 by broncovet (see edit history)

[Swarthy]

here's my letter thus far suggest edits/additions please:

Remand docket # 13-13-450

4-18-2014

FINDINGS OF FACT

1. A September 2008 rating decision denied the Veteran's claim of entitlement to service connection for PTSD. The Veteran was notified of his appellate rights, but did not complete an appeal of the rating decision.

2. Evidence received since the September 2008 rating decision is not cumulative of the evidence of record at the time of the previous denial as it relates to an unestablished fact necessary to substantiate the claim of service connection for an acquired psychiatric disorder and raises a reasonable possibility of substantiating the Veteran's claim of service connection.

CONCLUSIONS OF LAW

1. The September 2008 rating decision which denied the Veteran's claim of entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105© (West 2002).

2. Evidence received since the September 2008 rating decision in connection with Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

from page 6 of the remand,

Furthermore, with respect to the claim as it pertains to PTSD, the Board notes he was not provided sufficient notice regarding the evidence he may submit to support such a claim based on personal assault

My effective date should be a date closer to the September 2008 descision made final by the Board as I cured my NOD and perfected my appeal within the one year time requirement.

38 CFR 3.155(a).

Generally, when a compensation claim is granted, VA pays a monthly benefit according to the severity of the veteran's disability beginning from the claim's

effective date, which is usually the date the claim was filed. 38

U.S.C. 5110. Therefore, Sec. 3.155 allowed claimants to secure a

potential earlier effective date for an award by submitting an informal

claim that was subsequently ratified by a formal application or for

which an application was already of record.

The RO took my single claim with my 3 diagnoses and split it into three claims. Then each of these “issues” was re-written by the RO e.g. My claim for “Nocturnal Myclonus” (that I copied from my SMR) was changed to a claim for ‘sleep apnea, My claim for PTSD was changed to Depression, Anxiety, and ‘ETOH abuse’. My claim for “Right Long thoracic nerve palsy” (copied from my SMR) was change to “Right shoulder weakness” (which is a symptom not a diagnosis).

And of course this has led to several years of letters and responses, emails, and rewriting claimed contentions.

These claims now made sepreate by the RO all come with different filing dates, deadlines, nand notices. then they all have different SOC’s, SSOC’s and again all with different deadlines in which to file the appropriate responses, statements in support of claim, and NOD’s, on and on.

To the point where I received a notice from the RO saying that it was unsure if I was filing a claim for PTSD.

Despite PTSD being my original claim in September 2008.

Likely, this was a result of the RO changing the diagnoses/issues in my claim.

This RO has now essentially filed 3 successive initial claims (with continually changed diagnoses) for me, drawing me into me to trying to manage numerous deadlines, filing correct responses/forms/wording on those forms all the while reinstating the correct diagnoses on these claims. All the while being 80% disabled with 70% of the being psychiatric, and maintaining my therapy, avoiding homelessness, undergoing substance abuse rehabilitation, finding employment and a place to live, and eventually obtaining a college degree.

What this RO did also contradicts VA directives:

As discussed in more detail below, revised Sec. 3.155 of the final

rule also provides that only one complete claim for a given benefit

(e.g., compensation, pension) may be associated with each intent to

file a claim for the same benefit for purposes of the effective date

placeholder mechanism. In other words, if a claimant submits a VAF 21-

0966 for compensation, and then files two or more successive complete

compensation claims within 1 year, only the issues contained in the

first complete compensation claim would relate back to the VAF 21-0966

for effective date purposes.

I filed one claim. The RO would disassemble this claim into 3.

The effective date of the 2007 claim is also protected here:

§5108. Reopening disallowed claims

If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

The statute affirmatively prevents any effective date

consequences for an incomplete application not formalized within one

year.

§3.400 General

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.

§3.401 Veterans.

Awards of pension or compensation payable to or for a veteran will be effective as follows:

(2) Date of departure from hospital, institution, or domiciliary.

The above hospital/domicilliary admission and discharges occurred in 2000, again in 2003 and agin (final one) in 2007. Additionally, my VA records from 2003 contain a Doctor’s order sending me to the hospital’s disability claim coordinator to file a claim for disability in 2003, establishing the presence of a disability as a fact and satisfying the requirement of:

We further note that, to the extent the intent to file process and
these special statutory effective dates intersect, the amount of
retroactive benefits is always limited by the facts found--a claimant
can never receive disability benefits for a period in which he or she
was not, as a factual matter, disabled, or at a degree of disability
higher than supported by the contemporaneous facts. This caveat is
current, established law, unaltered by this rule. Basic entitlement to
compensation is always dependent on the existence of a current or
contemporaneous ``disability,'' and its accompanying severity as
determined by the rating for that disability. 38 U.S.C. 1110, 1114,
1131; 38 CFR part 4. Additionally, all effective dates are generally
``fixed in accordance with the facts found.'' 38 U.S.C. 5110(a))

Here is the original descision that unbeknownst to me had 2 of my diagnoses changed by the RO: Nocturnal Myoclonus was changed to ‘Sleep Apnea” and Long thoracic Nerve Palsy was changed to “Right Shoulder Weakness”.

From here on out this claim would be split up and conditions added or reworded by the RO away from my active duty diagnoses.

Received: 11/27/2007 (Compensation)

Claim Closed: 09/26/2008

Disabilities Claimed:sleep apnea (New), right shoulder weakness (New), PTSD (New)

Your Designated Representative for VA Claims: DISABLED AMERICAN VETERAN
Current Status: Complete

Here my claim becomes claims.

regarding the “Sleep Apnea”. After receiving several notices from me (all the while trying to respond for requests for evidence of diagnoses I didn’t have)
The RO finally gets the diagnosis correct for this claim (but denies it because there is no evidence that I have the claimed condition (I copied the diagnosis out of my SMR)

Received:05/15/2009 (Compensation)

Claim Closed:02/26/2010

Disabilities Claimed:periodic limb movement disorder (claimed as nocturnal myclonus) (New)

Your Designated Representative for VA Claims:DISABLED AMERICAN VETERANS

Current Status: Complete

“Leg condition” decision dated 2/25/2010

Your VA treatment records from Sheridan show RLS diagnosed in mental health examinations, verified, prescribed medication as indicated by you but no other specific treatment or diagnosis from a medical examiner until your C&P”

Here the rater is neglecting to report the sleep study in 1995 that showed “Severe Periodic Limb movement Disorder” and “0% stage IV sleep”

This statement is also confusing: “your records show RLS diagnosed..., verified, prescribed medication but no other specific treatment or diagnosis until your C&P”

Huh?

How could I currently be diagnosed and treated for “RLS” (restless leg syndrome) but denied because of “no other specific treatment or diagnosis from a medical examiner until your C&P”

This RO had copies submitted by me of overnight sleep study exams from Active Duty diagnosing a sleep disorder (Nocturnal Myoclonus) characterized by “severe PLM disorder” (Periodic Limb Movement).

Again the rater changes my diagnosis as s/he see fit: PLM to RLS?

Also, the implication by this rater that my condition didn’t exist “until your C&P” is not okay.

Similar actions by this rater are seen as my claim progresses- the Board also seems to acknolwedge this when finding that the RO did not “provided sufficient notice” notice to me.


6/5/2012 “We cannot accept your statement as your substantive appeal as the time limit has passed...You filed a NOD on May 15,2009, an SOC was issued to you on 1/6/2010 so you had until 3/6/2010 to submit your substantive appeal”

So, I filed a NOD and a new claim (Received:05/15/2009 (Compensation) on the same day?

I was operating from the knowledge that I had one claim- filed in 2007, which was decided on September 26, 2008 and the appeal perfected by me on May 15, 2009.

So back to the ‘herding of the cats’ that has become my claim:

One of these 'claims' was closed on 2/26/2010 But an SOC issued to me one month prior on 1/6/2010 in which I had 60 days to respond?

Confused?

At any rate, I did respond – probably to the one dated 2/26/2010 and I guess I submitted a “Notice for Reconsideration” instead of a “Notice of Disagreement”:

“4/6/2010 Notice for reconsideration received by RO”

Despite the administrative jockeying going on at the RO, I provided (depending which claim notification of the 3 you read from)

a NOD or a Request for reconsideration or a Request to Reopen 3 weeks before the 60 day time limit . Regardless my appeal was accepted by the RO on May 15.


See also

1/7/2010 SOC sent to me

4/20/2010 “we received additional evidence that was not associated with the file on 5/14/2010”

5/14/2010 “Denial continued as you submitted no evidence”

9/9/2010 “We received New and Material evidence (EMG) that shows…” the injury with the Dr. stating it was an old injury

5/25/2011 “In our previous letter to you dated 9/10/2010, we advised you that you were notified of your rating decision on 9/25/2008. This was incorrect. You were actually notified on 9/26/2008. This letter will address that issue.

1/23/2012 “We are working on your claim for Psychiactric condition received on 12/27/2011

7/12/2012: “On 6/6/2012, you contacted our National Call center in regards to your pending appeal, upon review of your email correspondence it appears as though you are claiming service connection for PTSD, but it was unclear”

10/5/2012: “We received your NOD of our 12/20/2011 decision

10/5/2012: “We received your NOD of our 7/29/2011 decision



9/9/1995 EMG reveals and diagnosis the shouldr injury.

12/2003 You complained of neck and shoulder pain.

6/6/2008 VA exam indicates you have no pain, no atrophy, no weakness, and normal range of motion

In actuality the examiner clearly states, “Scapular winging and 50% reduction in ROM” and attributes/connects this condition to the injury received on Active Duty.

Physical Therapy notes from June, July, August 2010 all show “ You had weakness and winging.”

5/21/2010 you did not submit any evidence. (see 4/20/2010 “we received additional evidence”)..you do not have a current diagnosis.

The following denial was completely erroneous:

6/25/2010 evidence submitted does not show evidence of a chronic right shoulder condition...EMG on 2/1995 revealed normal distal and F-wave latencencies”

What the rater does here was either neglect to read -or chose not to include- the very next sentence of the doctor’s findings in which the doctor (Cmdr. Kane) wrote in bold-

“Except no motor unit conduction in posterior shoulder...”

Here is more of the jockeying of the shoulder condition by the RO/Rater:

7/2011 you had no giving way, no deformity, instability, locking, speed of joint motion, or neck pain.

You did have posterior shoulder pain around scapula, stiffness, weakness, and incoordination

Regarding the condition for a Sleep Disorder

Claim Closed:02/26/2010

Disabilities Claimed:periodic limb movement disorder (claimed as nocturnal myclonus) (New)

Your Designated Representative for VA Claims:DISABLED AMERICAN VETERANS

Current Status: Complete

5/25/2011 “Mr. xxxxxx we are working on your claim for “Right Shoulder condition, Sleep disorder, Neck pain “

“Sleep Apnea” is thankfully now corrected, but PTSD is gone and has been replaced with a claim for “Neck Pain”?

Interesting, because I will be denied because I have “no diagnosis nor complaints of” of Neck Pain

(IRIS reference # 1105270001576

IRIS response:

“We received a response from your regional office to our referral:

"Upon review of the claim that is ready to rate status, it is noted that Veteran actually submitted a claim for reopen of previously denied issue of sleep disorder that has not yet been addressed. Therefore, a new evidence notice letter will be sent to the Veteran today for further development on this issue. So claim is no longer in ready to rate status and is pending new and material evidence from Veteran."

We apologize for the delay in responding to your inquiry. We are currently experiencing a large volume of inquiries and are working as quickly as possible to respond to each in a timely manner.

Our records indicate you currently have no pending claims but do have three appeals pending.

We received your Notice of Disagreements (NOD), one on April 23, 2012, for service connections for acquired psychiatric condition to include post traumatic stress disorder, a NOD on April 24, 2012, for earlier effective date for right shoulder condition, and a NOD on June 27, 2012, for increase rating for right shoulder condition.

Email to IRIS

[---001:001293:64325---] Dept of Veterans Affairs IRC REFERRAL -- I am wondering about the descision phase as my claim has lingered there…”

Response from IRIS

.

“Recently you requested assistance from VA. Below is a summary of your request and our response. If

you wish to reopen this issue, you may do so within the [message truncated]”

Response from IRIS

(An example of great response from IRIS and the representative should be acknowledged for it)

[inquiry: 120527-000063]

Dept of Veterans Affairs

May 27, 2012

The Department of Veterans Affairs has received your 'Question'. You should expect a response from us within 5 business days. If you wish to update your inquiry, please reply to this email. Once you have entered the additional information, click on Send. Thank you.

[---001:000662:03349---]

Dept of Veterans Affairs

Dear Mr. Swarthy:

This is in response to your inquiry to the Department of Veterans Affairs (VA) dated May 27, 2012.

Thank you for your honorable military service to our country! We are grateful for the opportunity to serve you.

We apologize for the delay in responding to your inquiry. We are currently experiencing a large volume of inquiries and are working as quickly as possible to respond to each in a timely manner.

We received your Notice of Disagreement on April 23, 2012, for service connection for Post Traumatic Stress Disorder. Our records indicate that California Department of Veteran Affairs is currently on file as your POA. You may also contact them with any questions you may have.

The DRO election requires that your file is reviewed by a Decision Review Officer. The DRO is an experienced decision maker that has the authority to take a fresh look at your case and overturn the initial decision without the need for any additional evidence. This is commonly referred to as a denovo review.

If you elect this process, the DRO will review your claim. Upon review, it may be determined that additional evidence is needed before a decision can be made. If no additional evidence is needed, the DRO will provide a new decision on your claim.

We have forwarded your inquiry to your station of jurisdiction for your request to have a copy of your claims file. We have asked them to respond directly to you with their findings.

Thank you for contacting us. If you have questions or need additional help with the information in our reply, please respond to this message or see our other contact information below.

Sincerely yours,

Donovan W. Thompson

National IRIS Response Center Manager

Recently I received these useless emails the second one being a robot response of the first one but spells my name wrong:

[inquiry: 141118-001402] 11/19/2014

Dear Mr. Swarthy,

You have reached the Board of Veterans' Appeal web site in Washington D.C. Your file is located at the Appeals Management Center (AMC). On

April 18, 2014, the Board remanded your appeal to the AMC. The remand action was necessary to assist you with the development of the appeal and to ensure the record is complete. When the development is completed, the AMC will readjudicate the appeal. If any part of the decision remains unfavorable, the case will be returned to the Board for a comprehensive review of the entire record. For your convenience I provided the contact information for you.

Mail

Appeals Management Center (AMC)

1722 Eye Street, NW

Washington, DC 20421

[Inquiry: 150212-000719] 02/12/2015

Dear Mr. Smarmy,

You have reached the Board of Veterans' Appeal web site in Washington D.C. Your file is located at the Appeals Management Center (AMC). On

April 18, 2014, the Board remanded your appeal to the AMC. The remand action was necessary to assist you with the development of the appeal and to ensure the record is complete. When the development is completed, the AMC will readjudicate the appeal. If any part of the decision remains unfavorable, the case will be returned to the Board for a comprehensive review of the entire record. For your convenience I provided the contact information for you.

Mail

Appeals Management Center (AMC)

1722 Eye Street, NW

[Inquiry: 150309-000043] Mar 9

The Department of Veterans Affairs has received your 'Question'. You should expect a response from us within 5 business days. If you wish to update your inquiry, please reply to this email.

[inquiry: 150309-000043] (2)

Mar 12

Recently you requested assistance from VA. Below is our response.

If you wish to reopen this issue, you may do so within the next 14 days.

Thank you for allowing us to be of service to you.

What was the issue? What was my question?

I’ve never been given 14 days before, is this a new deadline to keep track of now?

Below are excerpts from other descision letters, Notifications, SOCs, SSOC’s, etc. that display how complex, off course, and confusing this RO made my claim since their very first “descision”:

“ We have granted service connection...A noncompensible evaluation is assigned from November 2003, the date we received your original claim.

Although we received your original claim in 2003, your claim was not rated until September 25, 2008, of which you were notified September 26, 2008. Since that time you have continually prosecuted your claim and therefore, prior decisions were not final and your effective dates have been preserved. A noncompensible evaluation is assigned for incomplete paralysis of arm movements which is mild.

We have granted an increase in your condition, with an evaluation of 10% disabling effective May 17, 2010, the date factually found on VA examination...this was confirmed in a July 2010 EMG”

Whereas before the exam showed...i don’t know...no “deformity” as required by the rater but “scapular winging” instead. No “giving way or weakness” as required by the rater. Instead I had “Instability, incoordination”

A higher evaluation of 20% is not warranted unless evidence demonstrates incomplete paralysis of arm movements which is severe.”

In contrast, my C&P examination clearly states “Winging”, “weakness”, “50% reduction in movement”

Additionally, The EMG in 2010 produced and confirms the exact same results from 1995, which I was given because I was unable to do a push up during Physical Readiness Testing on active duty.

The possibility certainly exists that had I not already been transitioning out of the military I may have been discharged because of any one of for all three of these conditions/disabilities.

The rater writes, “you had no deformity, no giving way, no neck pain. Instead what you had was weakness, scapular winging, and shoulder pain” your claim for Right shoulder condition is denied.

Huh?
This does not read like a non-adversarial development of a claim.

Edited March 22, 2015 by Swarthy (see edit history)

[jeffperry1134]

I know in my case I have had a diagnosis with the VA since 2001, and have been getting 50% since 2007 when we filed the NOD appealing for a higher percentage. I know that the therapist letter should be new material since she recently told me that even though I signed a release they never contacted her or asked for anything. The older eval they would have. IS that letter enough new material?

[broncovet]

Swarthy

Your letter looks good and very detailed. Maybe you can cut the length of the letter a bit, if you can, reminding you they dont like to read it especially when its very long.

Jeffperry

Since the VA obviously does not have that evidence, it would be "new". If this evidence supported your position of an EED, and contained said information, then my guess it would be material. I dont know, for sure, if it would be material without reading the letter and reviewing your file.

[jeffperry1134]

I am hoping to get the letter before the deadline on Wednesday when I am going to meet with the Vet rep. My POA is out until the 30th so I don't have her to bounce any information off of. My therapist should be able to do a letter and state my symptoms and how she believes it equates with the symptoms listed in the VA regulations. I heard a recent rumor that they are trying to keep everyone's back pay to under 25,000 so they don't have to get as many signatures.. Is that correct?

[broncovet]

Jeffperry:

Dont worry about your "deadline" with the VSO. If you get evidence after you see him, send it in yourself, or, send the VSO an email/or letter. An email documents what you wrote much better than a phone call. Make another appointment with the VSO if you want to submit it through him.

In regard to the "rumor" you suggested about VA not liking to do awards over 25 grand, intuitively that is true. I bet you dont exactly like paying bills over 25k either, right? I know there has to be an extremely compelling reason why I would pay a bill over 25 grand.

All this said, the EAP (Extrordianry Awards program, that is, over 25k) is dead. The Courts ruled it illegal. This is how one attorney explained it.:

http://thomasandrewslaw.blogspot.com/2010/08/macklem-eap-equals-cue.htm

[FormerMember]

The EAP was dead before I filed my NOD on my EED for 1994. Nevertheless, VA fought for seven long years to the CAVC to avoid it-not once but twice. Mandate issued Friday on 15-112. Davis told me to go piss on a flat rock. Back to the hamster wheel for the 100% for PCT and the ILP greenhouse.

[Swarthy]

Jeffperry,

Please start a new topic to discuss your claim.

[Swarthy]

I need help untangling my next step:

In 2014:

1. The September 2008 rating decision which denied the Veteran's claim of entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105© (West 2002).

2. Evidence received since the September 2008 rating decision in connection with Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

Status of Your Claim

Complete

• Submitted: 11/27/2007 (Compensation)
• Claim Closed: 09/26/2008
• Disabilities Claimed: sleep apnea (New), right shoulder weakness (New), PTSD (New)
• Representative for VA Claims: DISABLED AMERICAN VETERANS
• Current Status: Complete

In 2014 the claim for PTSD was granted and rated by the BVA.
An effeective date was made for 2011 (The date we received your claim)

My question is that since the 2007 descision was made final and the case reopened simulataneously- would that make my effective date to the 2008 descision, not 2011?

My RO screwed the pooch, re-writing my contentions and I ended up with a "new claim" (see below)

• Submitted: 12/27/2011 (Compensation)
• Claim Closed: 04/19/2012
• Disabilities Claimed: acquired psychiatric condition(New), ethanol abuse (Secondary)
• Representative for VA Claims: DISABLED AMERICAN VETERANS
• Current Status: Complete
  
  In effect, I have had two claims running for mental health

one for PTSD (filed in 2007)
and one for "Acquired Psych" (re-written and filed by RO)