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Billielea

NOD / DRO or TARP?

Question

After almost a year of waiting on my C-File, I am starting my NOD without it. My question, which appeals method is better, DRO or TARP? Last year I was awarded 50% for PTSD reopened claim and had my 10% TBI rating decreased to 0% on an increase request. I originally filed in 2009 and was awarded the 10% TBI and denied PTSD. I filed a NOD at that time and wrongly assumed that they would call me in for another C&P and did not submit additional evidence. My appeal was closed in 2012 with no action. My last C&P notes on blue button state that I presented with same symptoms as 2009 C&P. Also, I realize the rules were different back then, but I had documented stressors (Combat Action Badge and serious incident reports). I plan on appealing the PTSD effective date and TBI rating. Please advise.

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Odd that they granted the TBI at first but denied the PTSD.

Since they did eventually award for PTSD, there could be a clear and unmistakable error (CUE)in the decision from the 2009 claim.

 "I filed a NOD at that time and wrongly assumed that they would call me in for another C&P and did not submit additional evidence. My appeal was closed in 2012 with no action."

Do you have proof they received the NOD. I just posted seconds ago how the IG caught Wichita VA manipulating NODs. The report is in pdf form and I have not read it all yet.

"My last C&P notes on blue button state that I presented with same symptoms as 2009 C&P." That is good evidence as it does support that their decision must have contained a CUE.

" Also, I realize the rules were different back then, but I had documented stressors (Combat Action Badge and serious incident reports)."

The main rule change in 2010 was that a PTSD diagnosis MUST come from a VA MH provider.

You were grandfathered in to the prior PTSD regs.

"but I had documented stressors (Combat Action Badge and serious incident reports"

TBI is a stressor and certainly CAB is as well. They should have conceded stressor in 2009.

" I plan on appealing the PTSD effective date and TBI rating. Please advise. "

If you can scan and attach here the 2009 decision, as to their Reasons and Bases part and the Evidence list they used in the decision, I can see if it has a bonafide CUE potential.

At this point, depending on what you posted here, it is definitely a CUE situation in my opinion.

But we need to see the actual words of the VA. Also scan the rating sheet too for us to see.....Cover your C file # and name prior to scanning it.

CUE claims can reap retro from a better EED that a vet would never get, unless they file a CUE claim.

Lots of info here on CUE.

"After almost a year of waiting on my C-File, I am starting my NOD without it. My question, which appeals method is better, DRO or TARP? Last year I was awarded 50% for PTSD reopened claim and " etc

What was the decision date? How much time do you have left within the one year NOD deadline?

 

 

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Berta, thank you so much for the response. I am out of town and cannot upload my 2009 decision. I should be able to in a couple of days. I will upload my latest C&P notes from blue button. The last paragraph of the last page is where the Dr. states "However, it should be pointed out that most of the symptoms the veteran described during today's MH examination certainly those common to a PTSD diagnosis- she also described during her 7/8/09 Initial PTSD examination, in Oklahoma City, three years PRIOR to her son's illness."

The only proof I have that they received the NOD is that the appeal is showing in ebenefits. I do remember getting a letter saying they received it. The appeal was closed 5/31/2011.

I do remember from the decision letter that the stressor was conceded but it stated that I lacked a PTSD diagnosis. Though I was told at an appointment prior to the C&P that I had PTSD. The C&P doctor stated that I was just stressed because I was pregnant. This is the main reason I am trying to get my C-file so that I see if these notes. I submitted the FOIA on 07/08/2015. Ebenefits: Estimated Completion: 11/29/2017 - 11/05/2018.

My latest claim was closed on 6/29/2015. So I still have a bit of time before I have to file the NOD.

Edited by Billielea

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The actual decisions will help us figure this out.

The C & P states:

 "If yes, list which portion of the indicated level of occupational and           social impairment is attributable to each diagnosis:              The Review TBI examiner has opined that "No significant residual              was found on today's evaluation. Her subjective complaints are due
CONFIDENTIAL Page 16 of 70
              to MH issues rather than TBI."
              100% of the impairment noted on this Initial PTSD report, is due to              PTSD and associated depression."

I hope others chime in her because that seems to me to say that they do not feel there are any TBI residuals.

But it also seems to indicate the PTSD rating should be higher,if that is solely the cause of the TBI residuals ,yet would have to raise to 70% which it didn't ,and only the decision will tell us how VA interpreted this report.

And it almost says( the way I read it), that the examiner found no residuals could be rated under TBI...Very odd...
 

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Your Denied NOD, did you request a DRO Review or Hearing? Getting a continued Denial Decision so quick, I think you or your VSO-Rep requested the DRO Review Route. Not supplying N & M Evidence, big mistake.

Failing to supply the "Mandatory New & Material Evidence," to the RO immediately after requesting the DRO process, caused an Administrative Denial.

I take it, you didn't continue your appeal, to the BVA, right?

If you have Med Evidence backing up a worsening of your PTSD or any other possible SC Issue, it's time to file an FDC for the New SC, Secondary Issue or PTSD increase?

Don't set on your Evidence, get it to the VA Rating Dept and NEVER ASSUME anything, when it comes to your claim.

Semper Fi

 

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