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]

Very often the thing "we Vets think" is Cue is NOT what actually wins Cue for us.  Remember that Cue is a "standard of review" that has a legal defination not an "intuitive" or even dictionary defination.   Also, with an exception that Berta succintly has pointed out, you use CUE as the last resort, only if you have exhausted other appeals.  You have to keep things "in order":

1.  You get service connection for a disorder.  

2.  You get a disability percentage and an effective date. 

3.  You appeal the disability percentage and/or effective date.  

YOu dont appeal an effective date for a disorder not yet service connected.

The VA wants you to drag this out 20 years or more.  You should just address service connection, disability percentage and effective date all in one fell swoop.  NOPE.  The VA insists on seperating them and fighting you on each and every one, in order to try to delay the claim until after you die.  YOu know, its this non adversarial claims system that helps them do that to us.  

I can appreciate you trying to maximize your benefits, and I am on board with that 100%.  To accomplish what you are trying to do, however, is problematic, as I will explain:

a)  You apply for benefits in 2014, and then tell VA you were mentally off, from your sc disabilites, so you could not apply in 1984.  Ok, so far so good.  So, how did you manage to have the mental capability of applying in 2014?  Did you improve?  Or did someone help you apply in 2014, such as a VSO, trusted friend, attorney, etc?  That's all fine and good, so why did you not have the person who helped you apply in 2014, apply earlier in 1984?  

b)   In other words what ever reason was you applied in 2014, those similar reasons apply in 1984.  The obvious question is why did you not apply in 1984, and waited until 2014.  It wasnt mental illness, because you had that in 2014 when you applied.  (If you didnt have it in 2014, then end of story, you wont get compenssated)  And, if you got a helper in 2014, why could you not have gotten a helper in 1984, also?  You can not attribute "not applying" to your sc mental illness in 1984, when your same mental illness did not stop you from applying in 2014.  

[HorizontalMike]

On 12/29/2015 at 1:43 PM, lotzaspotz said:

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.

 

I really like that second reference (38 CFR 3.159(a)(1) ).  I already see in many of my VA Progress Notes of the C&P examiners trying to use MY observations "AS competent medical evidence" against me.  They are particularly trying to blame my OSA on my "prior to service" broken nose/deviated septum, YET they have no actual medical evidence of that... only my own hearsay.  Additionally, the OSA C&P examiner appears to be applying 1996-2006 rating criteria in determining that my 1972-76 STRs "don't have" the then later required "multiple" events and such.  In 1972-76 their was no such thing as a sleep apnea diagnosis. 

"...Sleep medicine as a field was not established until the early 1970s after the discovery of obstructive sleep apnea syndrome (OSAS) in Europe in 1965 [1, 2] and the establishment of the first sleep laboratory at Stanford in 1972. The term “polysomnography” was coined by Dr. Jerome Holland at Stanford, in 1974, to describe ..."

In other words, my military MOs were not even aware of, much less trained in recognizing/diagnosing any of the sleep disorders in the early 1970s, so it would not have been entered into my STRs as such.  All of that said, all of my OSA symptoms were present at that time, and since.

FYI, for those who may not know when Sleep Apnea was actually added as a rate-able disability, was Oct. 7, 1996 when "Sleep Apnea"  was entered into the Federal Register under 38 CFR 4.97 #6847. 

https://www.federalregister.gov/articles/2007/03/20/E7-4914/schedule-for-rating-disabilities-appendices-a-b-and-c?utm_campaign=email+a+friend&utm_medium=email&utm_source=federalregister.gov

 

 

Edited January 3, 2016 by HorizontalMike