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?

[Andyman73]

SigBnSoldier,

Whew, brother, you sure got the runaround on that.

[broncovet]

"Constructive Possession" is in Bell vs Derwinski.  I like to call it "Constructive Receipt".  I learned this term back in the 1980's.   Its an IRS term.  Example:

YOu earn 35,000 in wages in 2014.  Your boss sends you a bonus check for 100,000 on Dec. 25, 2014, but you do not cash the check until Jan. 4, 2015.  How much did you earn in 2014?  You earned $135,000 because you "constructively received" the $100,000 bonus.  It matters not that you did not cash in until 2015, because you had that check in your hand.  You COULD have cashed it earlier, in theory, even if you got it after all banks were closed.   Besides, you got the money...that it was not in cash, but was in a check is irrelevant according to IRS.  You see, you accept your bosses paychecks "as if " they are cash, each week, because you are assuming his checks to be good.  So, you accepted the 100k bonus and it was constructively recieved. 

This helps me understand Bell.  

Bell says that VA has "constructive receipt" of those records, even if they were found years later to be sitting in a basement being gnawed on by rats and showed evidence of a flood damage in 1984.    Its not the Vets responsibility to say, "Gee, VA, you really had my records.  Some clerk erroneously archived them and moved them to a basement in 1983 where they were "lost" until the Inspector General found records there in a 2014 inspection"    

How would the Veteran possibly know those records were erroneously stored in a basement by a lazy VA employee in 1983?    No.  VA had "constructive receipt" of those records, even if they had no clue where they were.    Its the VA's job of record management in their possession..not the Veterans.   The Veteran has no control over VA employees, but VA does..so they have to manage them.   Blaming the Veteran for records stored in a damp basement does not fly under Bell.  

[SigBnSoldier]

On 10/10/2015 at 8:29 AM, Berta said:

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.

Berta-

I just read this reply, I know it's been a while since you wrote it, sorry.

VA awarded 70% NSC rating back in 2004 for bipolar.  I was simultaneously awarded SSDI.  That base is covered.  For now winning the EED is the focus, from there, continuity is a cinch.. 

On 10/10/2015 at 8:29 AM, Berta said:

 

 

 

[Berta]

Yeah.... and then they awarded for PTSD with bipolar....not bi polar with PTSD....PTSD is the primary condition

"GAFs between 20-40, with 7 inpatient 5150s."   But they treated you for bi polar and not PTSD.....?

Yet you sure didn't get PTSD at some C & P exam.....

I think the date your entitlement arose was long ago , when they started to misdiagnose you....shades of 1151....

(that might be one more avenue of approach here)

But best to wait for whatever the SOC says......

[broncovet]

Winning the effective date is often the most difficult and most legal and biggest legal challenge of all. 

The general rule on effective dates is that that its the later of the "facts found" or the date you applied.  But there are many important exceptions to the general rule.  

Many of those exceptions are covered here:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2 Common VA Effective Date ErrorsL.pdf

If you are a Nehmer Vet, then there are anothe set of exceptions:

http://www.purpleheart.org/ServiceProgram/Training2013/15-M-Nehmer Phase II - March 2013.pdf

My VBM, which is at least a year old, has more than 40 pages on Effective dates, with references to thousands of pages of case law.  

I recommend you take everything to a NOVA lawyer, and ask him/her if he can get you an EED and on what bases.  

If he says "yes", then you can decide if you want to do it yourself or hire him or others.  

[SigBnSoldier]

Here's the NOD, should help you guys understand better what I am claiming-

Appealing,

1.  S/P left ankle fracture pain, EED back to 11/20/03

2.  PTSD with Bipolar disorder, EED back to 11/20/03

3.  Lumbar Disc Disease, EED back to 1/23/2004

4.  Presumption of Regularity in rating decision dated 10/26/2004

 

In rating decision dated 10/09/2015 the VA rater stated, "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 that 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."
The above quoted rational is flawed, disputed, and therefore I disagree with it.
It is an UNDEBATEABLE FACT that VA was in constructive possession of Los Angeles VAMC records at the time of the mailing and remailing of decision dated 10/26/2004, and 01/19/2005 respectively.  
It is an UNDEBATEABLE FACT that VA was in possession of VA form 21-4138 dated 7/21/2004 informing VA I was homeless and mailing anything to my former address would be futile.  
It is an UNDEBATEABLE FACT that decision letter dated 10/26/2004 was returned by the US Postal Service as undeliverable to the Los Angeles Regional Office, which triggered a heightened duty to locate me.

Notice of Disagreement Continued-

 

M21-1MRIII iv 2 SecB (2)  A failure to consider VA medical records, which were in VA’s constructive possession at the time of the prior decision, may constitute a CUE, if such failure affected the outcome of the claim.  See VAOPGCPREC 12-95.

VA medical records are not limited to medical data only, they also contain possible and plausible addresses of a veteran.

In essence, VA failed to search its own records for my whereabouts after they had been informed that I lived on the streets and was homeless, and knowingly re mailed the decision notice to a false address preventing me from appealing my denial decision.  This is a procedural error which has kept my claim dated 11/20/2003 open and pending.  This is a type 1 error.

I still await formal notification of my decision dated 10/26/2004 and appeals rights to that decision.

It is my humble request, VA properly notify me of my decision dated 10/26/2004 and properly notify me of my appeals rights.

In VA’s decision dated 10/9/2015, the rater suggests that I am speculating about what was or was not of record during the 2004 rating decision.  I again submit date stamped copies of VA form 21-4138 from July 21, 2004 informing VA I was homeless, at the time, with no mailing address and provided dated West Los Angeles VAMC records containing a possible and plausible address of my whereabouts.  These were not merely a hypothesis, these are UNDEBATABLE factual evidence.

Why did VA cancel my CUE denial NOD dated 12/17/2014?  That appeal asks for the same things contained in this appeal.

Why has the rater failed to address this evidence turned in with the claim and proceeded to state I am “assuming”?  These documents were of record, copied from the record and yet again turned in for the record.

VA has not followed 38 CFR 19.25.

Enclosed with this NOD is Rating Decision dated 10/26/2004 with the words “Remailed 1/19/2005” handwritten on it, proving letter was never received by me because I didn’t live at that address.  Also attached with this NOD is a VA form 21-4138 time stamped and received by the RO on 7/21/2004 proving I informed VA I no longer lived at the address VA mailed the decision to.  The rater in the 10/8/2015 decision has turned a blind eye to these documents, stating I am assuming things.

Constructively possessed Los Angeles VAMC records will reveal possible and plausible addresses for the time period after VA’s receipt of the 21-4138.  Most notably is the address of the Hotel Riviera entered in the VAMC records on 8/31/2004 by author Brennan, Jean Hunter.  The denial of this CUE/Procedural error is improper.  This is not a matter of assumptions.  These records were of record with the VA at the time of rating decision dated 10/26/2004.  This is a blatant procedural error, and it prevented me from due process, see §3.103 (b) (1)

Effective date of 4/13/2012 for PTSD with Bipolar Disorder is an UNDEBATEABLE CUE.  VA’s failure to notify has created equitable tolling and the claim of 11/20/2003 remains open and pending.   My hope is we can resolve this sooner rather than before CAVC.

Thank you for your consideration.

SigBnSoldier XXX-XX-XXXX