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?

[Berta]

"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."

Beautiful! I too used constructive possession for one piece of evidence in my SMC CUE.

I am still thinking in terms of the PTSD as a negligence claim....(1151)I  just don't want to forget this potential because Dr. Mark Worthen, a member here, and Psychologist , would definitely be able to prepare an IMO for that if needed, I am sure..... 

There is the potential that the Bi polar meds masked PTSD symptoms or that no one simply knew what they were doing when they diagnosed the BP.

The fact that VA has conceded you have PTSD as a primary condition, makes me wonder if you do have Bi polar at all because

PTSD symptoms can match some manifestations of bi polar but the fact remains that these are 2 distinctly different MH issues , and the meds I would assume are different and could have even caused other problems , if they medicated you erroneously.

I also assume as they began to grant the PTSD ratings, the bi polar ratings went down. And I have also assumed that all of your care has come from the VA.

But I am thinking ahead like I did when I prepared my war plans.... plans of action for every claim I had since 2003...

I put a photo of my RO in the middle of a blank page and then arrowed the EN , flank-wise , frontally etc etc etc, with every possible avenue of attack.

Most of those avenues of attack I didn't need but it pays to think ahead. The VA of course is not an EN, because the reality of Time, for disabled veterans, is our true enemy.

Your willingness to understand the regulations and to use them to get what you deserve ,due to your sacrifice, is Very commendable.

38 CFR and 38 USC are weapons as good as probative evidence to fight with and overcome lousy VA decisions.

 

 

 

[SigBnSoldier]

There are no in service treatment records of bipolar disorder.  My first hospitalization for it was 5 months after discharge.  PTSD is the only way to service connection because of it being presumed.  Direct SC for bipolar would be a hard fight indeed.

[broncovet]

I like it, but suggest one thing.  Judges are very full of their own ego.  Always ASK them, never tell them.  But use leading questions, to be sure.  

I would not use the term "undebatable fact".  While I agree this is likely accurate, the judge wants to decide if its undebatable and not you.  (no offense meant).  

Its OK to say, "The RO decision does not dispute....."

Or,  "The RO decision dated xx-mm-yy has already conceded that...."   

I try to never put my opinion in there.  If you read the VBM, they often "undersell".  They dont say things like its an absolute undebatable fact that...._____" ...because then the lawyer can say..oh yes we debate that so called fact.  

But use their own words against them.  The RO decision stated, "xx yy, facts a, b, c".  However, Dr. S, stated on 11-14-08, " not a, not b, not c".  There fore, the decision was in error in that it was in conflict with the medical evidence.  

Its just a suggestion.  

"Undebatable fact" is a conclusion...and judges dont want to be told what their conclusion should be.  They are ok with you providing EVIDENCE to support your position, reminding you that the other side will likely prouduce, to the extent possible, contrary evidence.  And, the judge wants to be given the decision making power to say why he thinks xx argument is persuasive or non persuasive.  

Dont get me wrong.  You need to ask the judge what it is you want.  He wont want to figure out what it is you are asking.  You can say things like, 

I dispute the decision of 11-14-08 for the following reasons:

1. In adequate reasons and bases.  The decision stated, "there was no evidence of xx condtion in the file".  However, Dr. C on 8-8-08 prescribed bc drug which the PDR describes as a treatment for xx condition, and Dr. C made no indication he was prescibing this for an alternate reason.  Therefore, Dr. C prescribing this medication was a clear indication of the diagnosis of xx condition.  Further, Dr. YY on 9-14-12 made a diagnosis of xx condition, confirming Dr. C's reason for prescribing bc drug.  
 

Edited May 26, 2016 by broncovet

[Berta]

"There are no in service treatment records of bipolar disorder.  My first hospitalization for it was 5 months after discharge."

Sorry if I asked before but was that hospitalization at a VAMC?

  "PTSD is the only way to service connection because of it being presumed."  "Direct SC for bipolar would be a hard fight indeed. "

I sort of disagree.

The chronic presumptives regs refer to psychosis but Bipolar unlike PTSD ( and anxiety disorder) might fall under those regs as a chronic presumptive.:

https://www.law.cornell.edu/cfr/text/38/3.309#a

"Direct SC for bipolar would be a hard fight indeed. "

I had a bipolar vet friend . No one ( he had the DAV) ever suggested that he obtain his Personnel records in addition to his SMRS.

He finally followed some of my suggestions. I went over the 201 file carefully to see what he got a Captain's Mast for.And why they threw him into the brig.

We took the research to his VA shrink and the shrink wrote up a brief IMO.This had been a long standing claim and was at the BVA.They awarded.

His retro was almost 1.4 of a million. From "0" SC to 100% SC P & T.

They made his wife his fiduciary. Good thing. He was so happy that I helped him he wanted to take me to lunch....

In Ireland. ( an obvious manifestation of his bi polar)

We couldn't  use the chronic presumptives, because he did not file a VA claim for many years .

He certainly didn't have PTSD. These are two different MH issues.

 

 

Edited May 26, 2016 by Berta

[Berta]

I forgot to mention his initial manifestation in service of bi polar was the brig incident.

It was so out of character and unusual that the Navy, in those days, didn't have a clue on any BP disorders and kept him in the brig for a few days until he realized that he was not an Admiral and couldn't be giving the sailors ridiculous orders.

He was shocked when other sailors described his behavior to him. After service he returned to some sort of CEO job he had pre service but found himself in a mental hospital not long after that, for another  exuberant manifestation. Their DX was bi polar.

 

[broncovet]

If you were hospitalized for PTSD within 5 months after discharge, its gonna be a hard sell for VA to sell the judge something "other than service" caused your PTSD.  

Of course, military service is not the only trauma that causes PTSD.  Being a victim of a crime, auto accidents, lots of stuff can cause PTSD, not just military service.  

But, when you seek treatment for a malady within a year of service, that malady is presumed to be caused by service, absent your entrance physical noting the malady.  

If you are healthy going into service, and have PTSD within a year of exit, then that means you got it in service, that is, SC.