tdiu Lack Awareness of TBI, RE: Effective Dates & CUE

[HorizontalMike]

After +40years I was made aware of my SCD TBI w/stroke(MRI scan), and after +40 years of being forced between jobs ~every 1-2years. Took 40months and counting (for accurate retro date).

I have only a "summary of case" letter (explaining how lawyer got paid directly from VA) that stated a rating decision was made some 6weeks ago RE my case that awarded me fr40%---To-70% TBI and I was awarded 100% TDIU from just 4-months ago. Obviously the retro date (EED) is wrong, HOWEVER, I have a question about what the EED "might" be:

1. The residuals of TBI include "...impaired awareness of disability..." under Neurobehavioral effects. FWIW, I was NOT aware of the effects TBI on my life for over +40-years.  Didn't even know I had one.  Only after worsening MDD did I approach VA for mental health help in 2011.  After an MRI and a full Psych Eval, PLUS my request for my C-File, did I find out that I had had a moderate TBI in 1972.  QUESTION: HOW CAN I BE HELD RESPONSIBLE FOR THE ORIGINAL CLAIM DATE?
2. M21-1MR, Part V, Subpart ii, Chapter 1, Section B dictates that "...VA may award the disability pension retroactively for up to a period of one year before the date of claim, but not earlier than the date of permanent and total disability, if all the following conditions are met:
   • The veteran files a claim for a retroactive award within one year from the date the veteran became permanently and totally disabled. ...plus more... SOOOoo... QUESTION: How the Hail am I supposed to actually KNOW that not only am I totally disabled but ALSO THAT I KNOW that I had had a SC TBI in 1972?
3. Now I am trying to understand what constitutes a "Clear and Unmistakable Error" (CUE) 

That being said, I originally filed a claim in Sept. 2012, and I am sure my lawyer will want to get that date adjudicated as an EDD much earlier. 

MY BIGGEST QUESTION deals with the possibility of a retro-EED of either a year earlier than that OR a retro-EED back to 2006 when I actually lost my last employment forever? (see #2 above).

I do NOT look at my TBI "lack of awareness" lightly!  I went over 40 years without knowing about my TBI and only approached the VA for mental health (MDD) help FIVE years after being permanently unemployed at the time. I did NOT even know that I "might" have any VA benefits or anything else.  I always knew I had had a motorcycle accident and landed on my head, but the military kept ignoring my pleas for help (refused full psych evals FOUR times) and sent me away.  During those 4-decades I lost my job every `2-years, even though I managed to get 3-college degrees (PhD the highest).  Consequently I have little to no savings/equity.

SO... are there ANY grounds for a CUE determination in my case?  If so to what date, my last employment or -1year of claim filing?

Edited December 26, 2015 by HorizontalMike

[broncovet]

If you have gotten a "STATEMENT of CASE" that means your case is headed to the Board of VEterans Appeals, that is, if you timely file the required I9 form.  

I see 3 options for you:

1.  Handle your case yourself.  This might work, provided you have the time and persistance to follow it through.  Cost:  Your time, some postage, copies certified mailings, etc, and I would recommend a Veterans Benefit Manual which is about $150.    

2. Have a VSO do it for you.  Frankly, I doubt if most VSO's will go to bat for you seeking an effective date BEFORE you applied, as the regulations on that are clear:

38 U.S. Code § 5110 - Effective dates of awards

Current through Pub. L. 114-38. (See Public Laws for the current Congress.)

• US Code
• Notes

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(a)

Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

(b)

(1)

The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.

(3)

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

..............

(B)

A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.

end regulation quote.  For more, see https://www.law.cornell.edu/uscode/text/38/5110

3.  Enlist the services of an attorney experienced in Veterans claims, especially effective dates.    The cost of this can be zero, or it can be up to about 20% of your retro pay.  At the CAVC level (This assumes you get a BVA denial) you can get EAJA fees which can cover all/part of your attorney fees.  There is also a distinct possibility an attorney will take your case pro bono.  

 

No matter which of these you do, you need to order a copy of your cfile.  For me, I have decided to let my BVA appeal run its course, and already have an attorney lined up if the BVA is denied.  Many/most Vets advocates recommend attorney representation at the CAVC or higher levels of appeal.  

 

[lotzaspotz]

If you're thinking of filing an appeal based on CUE, you will have a difficult time finding an attorney to handle it.  They normally decline those cases.  Be ready to handle that one on your own if it comes to that.

[HorizontalMike]

My lawyer has been working my appeal since September 2014.  We finally got to the DRO (informal) hearing July 6, 2015.  Sent back for two more C&Ps (MH for MDD and Cognitive).  The MH C&P found "as likely as not" that my depression originated while in Navy 1972-1976.

NOT a problem with my lawyer getting 20% of retro, thus the incentive for that lawyer to seek earliest EED.

GETTING BACK ON TASK:  So are there ANY grounds for a CUE determination in my case?  If so to what date, my last employment or -1year of claim filing?  I am trying to find Rating Schedules and/or litigation history that would assist me RE my +40years "lack of awareness" of my TBI.  After all, "lack of awareness" is listed as a disability in the TBI Rating table.

M21-1MR, Part V, Subpart ii, Chapter 1, Section B    How can I make this work for me? 

 

4.124a-8 §4.124a—Schedule of ratings–neurological conditions and convulsive disorders 4.124a-8

Residuals of TBI...

Neurobehavioral effects

0%  One or more neurobehavioral effects that do not interaction.

Examples of neurobehavioral effects
are: Irritability, impulsivity, unpredictability, lack of
motivation, verbal aggression, physical aggression,
belligerence, apathy, lack of empathy, moodiness,
lack of cooperation, inflexibility, and impaired
awareness of disability. Any of these effects may
range from slight to severe, although verbal and
physical aggression are likely to have a more
serious impact on workplace interaction and social
interaction than some of the other effects.

10% One or more neurobehavioral effects that
occasionally interfere with workplace interaction,
social interaction, or both but do not preclude them.

40%interfere with workplace interaction, social
interaction, or both but do not preclude them.

70% One or more neurobehavioral effects that interfere
with or preclude workplace interaction, social
interaction, or both on most days or that
occasionally require supervision for safety of self or others.

[lotzaspotz]

What is your attorney's opinion of the CUE potential regarding the effective date?  Does he support it and if so, is he willing to represent the CUE?  

I've won and lost CUE's, in fact, I've got one currently pending at the CAVC.  No attorney on those, but there is attorney representation on non-CUE's.  You can't have more than one attorney on board, so the only option otherwise is to go the pro se route.

My opinion is to file for as early an effective date as can be credibly argued and supported by evidence within the confines of the statutes covering CUE's.  Compare your situation to the prerequisites of CUE and frame your argument accordingly.  If you end up representing yourself on your CUE, you'll need to read everything you can get your hands on about CUE.

[HorizontalMike]

What is your attorney's opinion of the CUE potential regarding the effective date?  Does he support it and if so, is he willing to represent the CUE?  

I've won and lost CUE's, in fact, I've got one currently pending at the CAVC.  No attorney on those, but there is attorney representation on non-CUE's.  You can't have more than one attorney on board, so the only option otherwise is to go the pro se route.

My opinion is to file for as early an effective date as can be credibly argued and supported by evidence within the confines of the statutes covering CUE's.  Compare your situation to the prerequisites of CUE and frame your argument accordingly.  If you end up representing yourself on your CUE, you'll need to read everything you can get your hands on about CUE.

I have a query sent off to my attorney and am awaiting a response.  I always try to be as informed as possible before any/every encounter with the VA or even my own attorney.  I read through the CUE prerequisites and find that they do NOT address the "impaired awareness of disability" aspect of my 70% rated TBI noted above.  The VA appears to take the position that the veteran ALWAYS knows what their own disabilities are and that those veterans are to be held responsible at all times, even for above TBI "impaired awareness of disability".

IMO, the "impaired awareness of disability" is NOT addressed by the VBA at all, and is thus a CUE on the part of the VBA/VA regulations.  What help I need from HadIt.com members is/are information about such cases and/or litigation, or VA regulations that address the very disability that kept me from being able to comply with the CUE regulations for +40years.

So, if anyone/everyone who sees this can direct me in the right direction for specific information, I will greatly appreciate it.  Thanks in advance.

[lotzaspotz]

My husband is rated for organic mental syndrome resulting from a pituitary tumor.  Although not equivalent to TBI, it does impair one 's awareness and ability to function as far as short term memory is concerned.  You can research cases yourself at the CAVC based on the following two statutes I'm using in my arguments:

38 CFR 3.156(c)(4) regarding evidence contained in service department records that were not considered or properly weighed, and

38 CFR 3.159(a)(1) which defines competent medical evidence, that is, the fact that veterans are not as a rule qualified to diagnose themselves.  The VA likes to use that statute against veterans, but there are instances when it can work in favor of veterans if the VA expects you to diagnose your illness or injury in clinically exact terms when you file a claim.

The right direction is a case search at the CAVC.