ptsd Fully Developed Cue

[SigBnSoldier]

Submitted CUE to Los Angeles RO on 5/6/15.

Evidence included-

7/21/2004 VA Form 21-4138 stating I was homeless with no mailing address at the present time

10/21/2004 Denial Decision letter mailed to address I had told VA I no longer lived at.

01/19/2005 2nd mailing of denial decision letter sent to the same wrong address again. This time RO handwrote in "C/O New Directions" but sent the letter to the same wrong address.

08/31/2004 Social Work Progress Note from VAMC stating place, address and phone number of new address in Santa Barbara I could be located at

11/10/2004 VAMC Los Angeles inpatient progress note stating I was returning to Santa Barbara.

01/19/2005 VAMC Los Angeles discharge summery note stating I was again returning to Santa Barbara Rescue Mission.

21-4138 Stating VA failed to follow proper mailing procedures and did not provide me with appellate rights. That I later, in 2012 won service connection for PTSD with Bipolar Disorder, and that effective date of 4/13/2012 was clear and unmistakable error, as well as the other contentions of that 2003 claim remained appealable.

So folks, do you think I've rebutted the presumption of regularity with this CUE claim?

[broncovet]

Getting an EED is a new ball game.  Yes, CUE is often alleged when Veterans seek an EED.  Your effective date will be the later of the date you applied or the "facts found", that is the date the doc said you wered disabled.  

If he says you were not disabled until 2014, and you applied in 2009, you wont get an earlier date, until/unless you have medical evidence your malady began in 2009.  

VA docs often hornswaggle Vets here.  Using this example, you applied in 2009, but the VA did not give you a c and p exam until 2014.  You get a favorable exam, but the doc DOES NOT SPECIFY WHEN THE SYMPTOMS BEGAN.  So, the rating specialist uses the date of the C and p exam (2014).  

Understand what is going on here.  This suggests you were perfectly healthy UP TO the day you went for a C and P examination, and poof, you go into the examiners office and you are suddenly disabled.  This does not happen, or if it did, the C and p examiner would be sued, as it suggests the doc disabled you when he examined you!  

Sometimes you need another doc (IMO/IME) to opine that your symptoms began in 2009, and cite the medical records where, you indeed already had symptoms when you applied.  

Most Vets dont say, "Ok, Im going to have a knee disability in 2018, so I will apply now so that when it happens, Im covered".  You can not predict a disability, you can only report that you have the symptoms of one.  

So, if you applied in 2009, you already had symptoms prior to then.  You have to document those symptoms to your date of application for that effective date to stick.  

There is much on here about effective dates, its one of the most complex areas of VA law.  The VBM has over 40 pages on effective dates.  I recommend you take your cfile to an attorney and ask him to review your file to see if he thinks an effective date appeal is justified.  You can then decide if you want to hire an attorney to do that or do it yourself.  

[SigBnSoldier]

Thanks Berta-

This is long and complicated, I'll try my best to break into paragraphs that make sense.

11/2003 filed an original claim for benefits while in a dual diagnosis VA treatment program for Bipolar/Alcohol Rehab.  Claim was pending when I left the program and became homeless.  I informed VA of homelessness with a 21-4138 and that I no longer had an address.  VA decided the claim (8 contentions) denying SC for all 8 of them with no C&Ps but granted NSC pension, and mailed the notification to that former address.  VA received said decision letter back undeliverable (this is all documented in my copy of claims file).  VA remailed decision notice to the same wrong address on 1/19/2005, all the while in my VAMC records there are two possible and plausible addresses in a different county and several statements of me being at the Rescue Mission in that county.  No notification was ever sent there.

Reopened claim  4/2012, for PTSD with Bipolar disorder and asthma. I literally assumed VA had just forgotten about me or shredded my claim or whatever, I was quite ignorant of VA system then.  Claim took 18 months.  Both contentions awarded effective 4/2012 notification date 9/23/2013.  Rated 80% IU/P&T

Appealed for an EED for asthma  with DRO review and filed CUE for asthma effective date 4/2014.  CUE denied 8/2014 but DRO granted the appeal instead.  Did not request an eed for Bipolar except va email to an email address that was listed on my denial notice from 2004 (laclaim@vba.va.gov).  No response was ever given to that email or acknowledgement.  But in the email I tell them there are errors in my notification letter from 2004 (which I received in a copy of my claims file given to me in 2013).  I also state I believe all my contentions are still un adjudicated because VA never succeeded in notifying me but instead knowingly mailed decision notices to the wrong address.

Filed a new unrelated claim on 12/1/2014 for liver, back, left ankle, left knee, GERD, and migraines.

Filed CUE 5/6/2015 for above mentioned failure to notify issues asking for backdate of ptsd with bipolar disorder all they way back to original date 11/2003.

6/1/2015 CUE claim closed and combined with unrelated claim of 12/1/2014.

10/8/2015 unrelated claim decided, which did include a review of my PTSD and asthma.  Have not received notification, but what's listed on Ebenefits blew me away.  PTSD increased from 70% to 100% and everything but GERD granted as well as SMC S-1, P&T continued.  Effective dates for these are 11/29/2014.  CUE and left knee are deferred.

 

So with all of that info, what I'm asking is, and I know it's a tangled web here.  With the new PTSD with Bipolar rating being increased from 70% to 100%, did the VA now open the door for me to go the easier softer route of a DRO or traditional appeal on the effective date of PTSD with bipolar disorder?  Or do I still have to go CUE only because the period to appeal for that has expired since my original grant and notification was 9/23/2013?

 

Whew... hope somebody can make sense of that.

 

Edited October 10, 2015 by SigBnSoldier

[Berta]

I think I got it:

: With the new PTSD with Bipolar rating being increased from 70% to 100%, did the VA now open the door for me to go the easier softer route of a DRO or traditional appeal on the effective date of PTSD with bipolar disorder?  Or do I still have to go CUE only because the period to appeal for that has expired since my original grant and notification was 9/23/2013?"

I feel you should file the NOD and, in my opinion this sure did open the door.

It will be interesting to see the Evidence list if you can scan and attach it here...when it comes as well as the Reasons and Bases, because that could contain what you need for a better EED.

Did they, when they awarded the NSC  pension, give you any rating  at all for the PTSD with Bi Polar?

Did they award solely based on possible SSI or SSDI awards that triggered the pension?

reason I ask is that this is the pension criteria from www.va.gov and if the pension they awarded you was not due to your age  or being in a skilled nursing home,they had to award it based on medical evidence from either SSI or SSDI or somehow having been declared totally and permanently disabled at that time.

Did you receive either SSI or SSDI or have  any other medical evidence that showed that the PTSD with Bipolar was ratable at time they awarded they pension and that they awarded the SSI or SSDI solely for what is now SC conditions?

"In addition to meeting minimum service requirements, the Veteran must be:

• "Age 65 or older, OR
• Totally and permanently disabled, OR
• A patient in a nursing home receiving skilled nursing care, OR
• Receiving Social Security Disability Insurance, OR
• Receiving Supplemental Security Income

I have a bipolar vet friend who I met when he lived at the Bath VA Dom. VA knew of his SSDI award for Bi polar but years ago they kicked many NSC vets out of the Dom at our local VAMC because they were not SC. He was declared homeless and I didnt hear from him for months, but his wife said he could move back home with her and he contacted me again about his potential for a VA claim.

Long story, lots of work too, but he filed the claim and ,although it took many many  years, they finally awarded 100% P & T for the BiPolar. We found evidence in his SMRs that his VA shrink also assessed and then his shrink immediately wrote an opinion as to the inservice nexus.

But my point is that it was the SSDI award that I believe got him the 100% P & T rating, jumping him from "0" NSC because otherwise VA would have low balled him, I am sure, if they depended solely on his VA medical records.

Now I wonder if I am making any sense at all on my point........I guess I think that SSI, just like SSDI would involve medical records maybe from their own doctors, to support a diagnosis of 100% P & T.

I hope others chime in on that.

 

 

Edited October 10, 2015 by Berta

[SigBnSoldier]

Update-

CUE denied at RO level.  RO claims I did not notify them of address change.  They essentially seem to be washing their hands of VAMC notification of address change.  So left hand is saying the right hand doesn't know what it's counterpart is doing.

Does this not contradict constructive possession rulings?

So, need some advice here, appeal to DRO or appeal straight to the board?

[SigBnSoldier]

Here's the slap in the face language of the denial--

The fact pattern does not show the VA failed to or erred in properly notifying you of an October 26, 2004 decision or in the remailing of the decision on January 19, 2005, regarding bipolar disorder.  It is the responsibility of the Veteran or other claimant to keep the VA aware of their whereabouts.  An assumption of what should or should not be of record regarding your whereabouts does not rise to the level of clear and unmistakable.

 

So here we have VA admitting they mailed to the wrong address, but claiming I didn't inform them of where I moved to.  My claim was that they had constructive possession of the correct address in my VAMC records.  I provided copies of those records with the claim as well as proof of the mailing being returned undeliverable.

They are basically saying that I'm speculating that VBA should have searched VHA records to obtain a proper mailing address.  I need somebody to point me to the regulation/s that cover "constructive possession" in order to write up my NOD.

And again, I ask for opinions on whether to send this to a DRO or straight to the board?

By the way, is AskNOD around anymore?

Edited October 14, 2015 by SigBnSoldier

[SigBnSoldier]

According to the 1-800 folks my NOD with the DRO is now "ready to rate".  Who knows how long before they pick it up to look at it...

 

In hindsight I guess I should have sent this straight to BVA, but I'm young (45) so I assume I have some time.

 

That's the latest, I'll update when I get an SOC.  I'm going all the way to CAVC with this one.