ptsd Reconsideration

[Ratthemac]

I'm trying to get advice on my claim. I recieved 30% ptsd when I recieved my letter a lot of the things we did talk about were stated as things I didn't have to get to 50%. The lady that did my exam almost made me feel worse that I was, even asking if I had a service dog!

So I have been trying to get ahold of anyone who could give me guidence, amvets and DAV ive called everyday for two weeks and no one will call me back. I called the va and they advised me to do a reconsideration vs. Appeal. VA advised my wife to send in a letter as well as myself, and also a stressor letter. These were never things I was told before otherwise I would have done them. 

Is this the right way to go?

Edited February 25, 2016 by Ratthemac

[flores97]

Rathemac, first off, welcome to Hadit. I am not a moderator or even an elder on this site, but I will try to help as much as I can, and I'm sure one of the senior members will comment soon as well. We will need some additional information, such as, when did you receive the award of 30% for ptsd? Also, there is to my knowledge no such thing as reconsideration(though they are fond of telling us there is).  You definitely need to file a NOD, or Notice of Disagreement with the 30% rating given to you. You can call 1-800-827-1000, and ask them to send you the form to file your NOD.  When you file, send in all supporting evidence, yes you can write a statement(called a lay statement), your wife can write a statement, your buddies you served with while in service can also write statements to help support your claim. When you call the 800 number, also ask for the "statements in support of claim" forms. I believe that if you can get in touch with your buddies they could write a statement out on regular paper and send it to you, but I'm not certain and hopefully someone can chime in. Can you give us the date you received the 30% grant for PTSD and was this at the RO level( Regional Office), or BVA level?

[Ratthemac]

I recieved the 30% rating on 2/6/2016. How do I find out what level it's on?

[Berta]

The VA has finally put Reconsideration regs into M21-1MR. Many of us have known for years we could use this option  and also certainly some of us have tried the reconsideration approach ( I sure did).

Flores asked some good questions

"I called the va and they advised me to do a reconsideration vs. Appeal"

Did they tell you that, even the reconsideration request does not produce what you want the

that ,if the NOD is Not filed within one year of the decision you wanted reconsideration of, then you will be in the crapper and will have lost the best EED if you try to re -open the claim.?

PTSD...a SC rating has nothing to do with the stressors. If you already have a SC PTSD rating, stressors are moot points now..

The main factor for a higher PTSD rating is how the disability affects your employment and ability to be rehabilitated educationally.

My husband had SC for PTSD at 30% and filed for a higher rating. The day he died he called them to see if his claim had moved in the past 6 months...it hadn't. VA awarded him posthumously at 100% P & T for PTSD.

This was prior to the VCAA regs but I knew what they needed as evidence.

His prime evidence was his SSA award solely for PTSD.

Also the circumstances of an EEOC case against the VA (his employer)  and the circumstances of about 17 claims of discrimination due to PTSD against our main electric company here in NY here filed with DOL under the Vietnam Era Vets Rehabilitation Act of 1974 to stop discrimination against Nam vets ..( VEVRA  1974 and not worth shit)

He had 10 years experience as a Nuke power plant operator and also had a PHVAC license.

The electric company finally hired him, and gave him excellent performance appraisals but then laid a few off and when they did the recall he was first to be called back and they never recalled him  but then they told DOL  he had created a hostile environment. Yet they never backed that up with proof.

He then became  the first ADA winner here in NY. I used that case as evidence too of his inability to gain and attain substantial employment solely due to his PTSD. ADA Americans with Disabilities Act-1993.

The electric company had to settle with him because we proved ,under the ADA, they had discriminated solely due to his SC PTSD.

Your situation isn't like that I am sure, but this is how a PTSD rating can turn from a low one into a much higher award.

We never even considered getting an IMO at that time. VA Voc Rehab also would not allow him to continue college at some point because the VA had caused him to have a stroke. VA Sced that 'as if SC" under 1151 about a year ago.

If the stroke had been directly SCable then the Voc Rehab statement would also have pushed the 30 to 100% P & T.

We need the answers to Flores questions as the dates are critical here and also can you scan and attach a copy of the 30 % award and the evidence list they used?

(Cover C file# prior to scanning it)

Flores, thank you... we all know more than we think we do sometimes about the VA. Especially when we have had to fight them so much.

As miserable as that is, it is quite a learning process.

The award letter will say exactly why they kept you at 30%.

Do you VA meds interfere with employment? Do you have performance appraisals that could reveal problems due to PTSD, like time off work too much or arguing with customers, co workers etc etc....violent outbursts at home etc etc...road rage......any DUIs ???

Maybe that all is not appropriate to even ask and I don't mean you personally...I need to look over the 50% criteria.

 

 

 

 

 

 

 

[Guest]

Okay the crazy one here.  Since you are already service connected for PTSD as Ms. Berta said you do not have to prove your stressor, that part of the battle is won in your favor. What you need is medical treatment records or progress reports that show that your PTSD should have been rated higher than 30%. Since you were just rated 2/6/2016 you can file a request for reconsideration at your local Regional Office but keep an eye on your NOD timeline. If VA makes a new decision that you disagree with or if VA denies you a higher rating before 2/06/2017 you must file a NOD on the 2/06/2016 decision and not the new decision.  Also if VA does not complete your request for reconsideration prior to  12/06/2016 than you should also file a NOD on the original decision 2/06/2016.  I hope this is not confusing.

Let's try this, in trying to help a veteran friend out, he was given a rating decision on 12/1/2013. He disagreed with the effective date and the rating percentage and wanted to file a request for reconsideration. I told him to go ahead and file a NOD. We talked and I finally agreed to help him file a request for reconsideration 1/5/2014. VA processed the request for reconsideration and granted the higher rating percentage but totally ignored the request for earlier effective date. The higher rating percentage was given the 1/5/2014 effective date and nothing more. Since VA was nice enough to process this claim so quickly 9/17/2014. To get the correct effective date he had to file a NOD by 12/1/2014 and he did on 10/14/2014 still within the one year of the 12/1/2013 rating decision. The point is filing a request for reconsideration does not stop or pause the NOD timeline. Keep a very close eye on that puppy because if you miss that deadline, you miss any kind of way of getting the correct effective date.

Hope this helps    

[broncovet]

Ratthemac:

   As far as "what level you are on", its likely you are at the Regional Office level, because you would know if you filed an I9 (Appeal to the Board of Veterans Appeals in Washington, DC).

   Here is what M21 says about reconsideration:

Section G.  Requests for Reconsideration
1.  Requests for Reconsideration 

Introduction    This topic contains information on claims for reconsideration, including  

definition of a request for reconsideration
initial steps for handling a request for reconsideration
determining whether to include appeal rights in the decision notice, and
letter to a claimant who provides no evidence, or evidence VA has already considered, in support of a request for reconsideration. 

Change Date    March 24, 2015

a.  Definition:  Request for Reconsideration    For the purpose of this topic, a request for reconsideration is a request from a claimant for the Department of Veterans Affairs (VA) to reconsider one of its decisions that has not yet become final (the one-year appeal period, which begins on the date the claimant was notified of the decision at issue, has not yet expired).

A request for reconsideration differs from a claim to reopen in that the decision at issue in a claim to reopen has become final.

Reference:  For more information about claims to reopen a finally denied claim, see M21-1, Part III, Subpart ii, 2.E.
    
b.  Initial Steps for Handling a Request for Reconsideration    The table below describes the initial steps for handling a request for reconsideration:

If the claimant submits ...    Then ...
evidence VA has never before considered    refer the request to either the rating activity or authorization activity (whichever made the decision at issue) for reconsideration.
no evidence but makes reference to available evidence that VA has never before considered    assist the claimant in obtaining the evidence.

Note:  Follow the applicable instructions in this table once VA receives the evidence.

Reference:  For information about assisting claimants in obtaining evidence to support their claim, see M21-1, Part III, Subpart iii, 1.C.1, 2, and 3.
no evidence, or
evidence VA has already considered    send the claimant the letter shown in M21-1, Part III, Subpart ii, 2.G.1.d.

Important:
If, when the claimant initially filed the claim for which he/she is requesting reconsideration, VA provided the claimant with Section 5103 notice for the contentions associated with that claim, there is no requirement to reissue the notice upon receipt of the claim for reconsideration.
Upon receipt of a request for reconsideration, establish an end product (EP) 020 with the ‘Reconsideration’ claim label. This will ensure that the intent to file (ITF) batch process will not update the status of an ‘active’ ITF to ‘claim received’ upon establishment of the EP. 
If additional conditions are claimed at the same time as the reconsidered issues, do not establish an EP 020 with the ‘Reconsideration’ claim label, but instead establish the appropriate EP based on whether the claimed conditions constitute new, increase, or reopened claim.

Example 1: Veteran receives a decision notice on April 4, 2015, stating that their claim for service connection for a right knee condition is denied. On May 10, 2015, the Veteran submits an ITF for compensation. VA receives a letter from the Veteran on June 16, 2015, requesting a reconsideration of the denial of the right knee condition, and simultaneously submits medical records that have not been previously considered (new evidence).

In this example, an EP 020 with the ‘Reconsideration’ claim label would be established, in order to ensure that the current status of the  ‘active’ ITF received on May 10, 2015, is not changed to ‘claim received’ when the batch process runs the night that the EP 020 is established.

Example 2: Veteran receives a decision notice on April 4, 2015, stating that their claim for service connection for a right knee condition is denied. On May 10, 2015, the Veteran submits an ITF for compensation. VA receives a complete VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, on June 16, 2015, requesting a reconsideration of the right knee condition, along with new medical evidence pertaining to the right knee, and also claims service connection for a back condition on the VA Form 21-526EZ.

In this example, an EP 020 with the ‘New Claim’ claim label would be established, in order to ensure that the that the status of the ‘active’ ITF received on May 10, 2015, is changed to ‘claim received’ when the batch process runs the night that the EP 020 is established.

c.  Determining Whether to Include Appeal Rights in the Decision Notice    Include appeal rights in a decision notice issued in response to a request for reconsideration only if VA received or obtained new evidence in connection with the claim for reconsideration.  Include the appeal rights and a VA Form 21-0958, Notice of Disagreement, regardless of whether or not the decision at issue changed. 

Important:  If the inclusion of appeals rights in the decision notice is appropriate, the claimant has one year from the date of that notice to file an NOD with the corresponding decision.

d.  Letter to a Claimant Who Provides No Evidence, or Evidence VA has Already Considered, in Support of a Request for Reconsideration    If a claimant who, in support of a request for reconsideration of a previously denied claim, provides 

no evidence, or
evidence VA has already considered,

send them a letter containing the language below.

We have received your request to reconsider your claim for <INSERT CONDITION(S)>. We previously made a decision on this claim and notified you of this decision in our decision notice dated <ENTER DATE OF DECSION NOTICE>. This decision notice included a VA Form 4107, Your Rights to Appeal Our Decision, which explained your appeal rights.

What Do You Do Now?
We will not take further action on your request unless you do one of the following:

Submit or identify new evidence related to the previously denied/decided issue(s). We have enclosed a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, for your use to identify any medical records that we do not have in our possession.
File an appeal (notice of disagreement) of our prior decision. To do so, you must submit to us a notice of disagreement expressing your dissatisfaction or disagreement with our prior decision, specifying which issue(s) or what part(s) of the decision you disagree with. You must submit a VA Form 21-0958, Notice of Disagreement, if the VA Form 21-0958 was provided to you as part of the decision notice for the decision that you would like to appeal. If you do not agree with our decision, please reference the What You Should Do If You Disagree With Our Decision section of the decision notice referenced above, which will provide you with information on what is needed to submit a notice of disagreement.
Identify a clear and unmistakable error in the prior VA decision. Clear and unmistakable errors are undebatable, so that reasonable minds could only conclude that the previous decision was flawed at the time it was made.
Where and When Do You Send the Information or Evidence?
Please mail or fax all correspondence to the appropriate address listed on the attached Where to Send Your Written Correspondence chart. Please put your full name and VA file number on the evidence.

If you are…    Then you have…
submitting or identifying new evidence…    one year from the date of our decision notice <INSERT DATE OF DECISION NOTICE> to submit new evidence.
filing an appeal…    one year from the date of our decision notice dated <INSERT DATE OF DECISION NOTICE>.
claiming a clear and unmistakable error…    no time limit since there is no deadline for filing a clear and unmistakable error.

end quote, sorry this is not formatted. 

I just hung up the phone YESTERDAY with my lawyer, and I asked her if a MFR (Motion for REconsideration) would be a good idea.  (I have recently recieved a BVA denial).  She said, "NO", and explained that 

a) They are rarely granted by the BOard

b) The will delay my "real appeal" to the CAVC.  

In reference to filing a "reconsideration" at the RO level, remember this:

Res Judicata prevents Veterans from asking for the same benefit over and over.  

Res Judicata

[Latin, A thing adjudged.] A rule that a final judgment on the merits by a court having jurisdiction is conclusive between theparties to a suit as to all matters that were litigated or that could have been litigated in that suit.The U.S. legal system placesa high value on allowing a party to litigate a civil lawsuit for money damages only once. U.S. courts employ the rule of resjudicata to prevent a dissatisfied party from trying to litigate the issue a second time.

 However, IF you have new and material evidence, you could well get a favorable decision by reopening due to N and M evidence 3.156.  

Lets use an example.  You apply for PTSD and VA denies,  as they say the record shows "no combat, and no stressor event".   You know that is inaccurate.  So, you submit new evidence showing you not only served in Vietnam, but you worked picking up dead bodies from the war.  Further, your service records show that your best friend was killed, and you were a witness to the IED that burned him to death.

In a case like this, you could submit the new evidence and you "might" save some time trying to do a normal appeal, but even then, before the magic one year passes you need to file a NOD unless you have gotten all the benefits you expected.  

[Ratthemac]

1 hour ago, Berta said:

The VA has finally put Reconsideration regs into M21-1MR. Many of us have known for years we could use this option  and also certainly some of us have tried the reconsideration approach ( I sure did).

Flores asked some good questions

"I called the va and they advised me to do a reconsideration vs. Appeal"

Did they tell you that, even the reconsideration request does not produce what you want the

that ,if the NOD is Not filed within one year of the decision you wanted reconsideration of, then you will be in the crapper and will have lost the best EED if you try to re -open the claim.?

PTSD...a SC rating has nothing to do with the stressors. If you already have a SC PTSD rating, stressors are moot points now..

The main factor for a higher PTSD rating is how the disability affects your employment and ability to be rehabilitated educationally.

My husband had SC for PTSD at 30% and filed for a higher rating. The day he died he called them to see if his claim had moved in the past 6 months...it hadn't. VA awarded him posthumously at 100% P & T for PTSD.

This was prior to the VCAA regs but I knew what they needed as evidence.

His prime evidence was his SSA award solely for PTSD.

Also the circumstances of an EEOC case against the VA (his employer)  and the circumstances of about 17 claims of discrimination due to PTSD against our main electric company here in NY here filed with DOL under the Vietnam Era Vets Rehabilitation Act of 1974 to stop discrimination against Nam vets ..( VEVRA  1974 and not worth shit)

He had 10 years experience as a Nuke power plant operator and also had a PHVAC license.

The electric company finally hired him, and gave him excellent performance appraisals but then laid a few off and when they did the recall he was first to be called back and they never recalled him  but then they told DOL  he had created a hostile environment. Yet they never backed that up with proof.

He then became  the first ADA winner here in NY. I used that case as evidence too of his inability to gain and attain substantial employment solely due to his PTSD. ADA Americans with Disabilities Act-1993.

The electric company had to settle with him because we proved ,under the ADA, they had discriminated solely due to his SC PTSD.

Your situation isn't like that I am sure, but this is how a PTSD rating can turn from a low one into a much higher award.

We never even considered getting an IMO at that time. VA Voc Rehab also would not allow him to continue college at some point because the VA had caused him to have a stroke. VA Sced that 'as if SC" under 1151 about a year ago.

If the stroke had been directly SCable then the Voc Rehab statement would also have pushed the 30 to 100% P & T.

We need the answers to Flores questions as the dates are critical here and also can you scan and attach a copy of the 30 % award and the evidence list they used?

(Cover C file# prior to scanning it)

Flores, thank you... we all know more than we think we do sometimes about the VA. Especially when we have had to fight them so much.

As miserable as that is, it is quite a learning process.

The award letter will say exactly why they kept you at 30%.

Do you VA meds interfere with employment? Do you have performance appraisals that could reveal problems due to PTSD, like time off work too much or arguing with customers, co workers etc etc....violent outbursts at home etc etc...road rage......any DUIs ???

Maybe that all is not appropriate to even ask and I don't mean you personally...I need to look over the 50% criteria.

 

 

 

 

 

 

 

I have never been treated. I've been out for 10 years with about 12 jobs. If there was an issue I'd often just quit. It's been hard to hold down a steady job so I haven't had insurance. I made an appointment once I was approved but it won't be until the end of april. I can upload award letter but like I said above some of the things they said I didn't have were things that we dogs talk about at my exam. Where can I find a c file?