ptsd Vietnam Vet Discharge Upgrade - some success?

[hawkfire27]

Hi Everyone, It has been a while since I have been active on the site. My husband is a Vietnam Veteran who has been 100% for PTSD since 1988. In 2014  we hired a lawyer to apply for a discharge upgrade from General Under Honorable Conditions to an Honorable with Medical Retirement. They flatout denied his initial claim in early 2015, citing that he willingly used a chapter 10 discharge and he had no recourse. Then the hagel memo came out, but it pertained specifically to veterans that may have had PTSD during service that received bad conduct discharges. Well through his lawyer we requested a reconsideration anyway in 2015. This week we received a letter from the ABCMR it was a copy of an advisory opinion from the Department of the Army, Office of the Surgeon General.

There is a bunch of unnecessary info so I will just post what is most important.

"3. In March 2015, Mr. Veteran requested that the board reconsider their March 2014 denial of his request for upgrade of his discharge to Honorable due to severe Post Traumatic Stress Disorder (PTSD). The Office of the Surgeon General was asked to determine if the applicant's military separation was due to PTSD or any other behavioral health condition.

6. The Board's prior decision was based partially on the lack of behavioral health documentation during Mr. Veteran's time in service.  The scarcity of documentation at this time was not unusual and his sustained and intense combat experiences clearly menet the stressor criteria for PTSD. His subsequent diagnosis and treatment for PTSD incurred through 30 months in Vietnam indicate that he more likely than not suffered from PTSD at the time of his separation."

 

Soooo... THis sounds really good for his discharge upgrade. At least to me it does. But my question is about VA compensation. He received his 100% in 2001 and it was backdated to 1988. During the hearing the adjudicator stated, "You really should be backdated to 1972 when you got out, but there is no documentation to prove this, so I will push it back as far as I can and that is when you Anxiety Disorder diagnosis was changed to PTSD in 1988." Therefore, my question is, does this ABCMR advisory letter constitute New and Material evidence, and what would the chances be of getting an earlier effective date? Should we just wait for the outcome of the ABCMR discharge upgrade request, or should we reopen his PTSD claim? Due to the backdating of his 100% award, is he covered by the 20 year protected rating rule, or do we chance his 100% rating being overturned if we ask for an earlier effective date?

Any help would be great, I'm looking for experience and opinions. Especially from Berta as I know she has excellent experience in retroactive and new and material evidence claims.

Thanks Guys!

 

[Berta]

WOW, this is very enlightening info! Good to see you back Hawkfire!

"During the hearing the adjudicator stated, "You really should be backdated to 1972 when you got out, but there is no documentation to prove "

Is it at all possible that he filed a claim with VA specifically for PTSD,or any anxiety disorder, in 1972?

Does he have his complete C file?

"Therefore, my question is, does this ABCMR advisory letter constitute New and Material evidence, and what would the chances be of getting an earlier effective date? "

I would say Yes it is M & E BUT ,it's value would rest on a past VA decision that denied him for anxiety/and/or PTSD in 1972....or even what VA called a "nervous disorder"before they deemed it as PTSD in 1983.

This is good too:

" His subsequent diagnosis and treatment for PTSD incurred through 30 months in Vietnam indicate that he more likely than not suffered from PTSD at the time of his separation."

But that is the fact for probably every PTSD combat Vietnam veteran.I mean they probably had PTSD even before they left the Nam.

Then again do I understand this correctly----does that mean by "incurred" that he had an inservice diagnosis and Treatment for PTSD  or they were saying "incurred" because of Vietnam.

I hope others here opine on this too:

"The Board's prior decision was based partially on the lack of behavioral health documentation during Mr. Veteran's time in service.  The scarcity of documentation at this time was not unusual and his sustained and intense combat experiences clearly menet the stressor criteria for PTSD."

That too could have been the case for many Vietnam vets who VA was dishing out those BS Personality Disorders to.

 "During the hearing the adjudicator stated, "You really should be backdated to 1972 when you got out"

Do you know if the hearing officer was looking at his DD 214 and discharge papers or something else when he said that? (like maybe a claim had been filed in 1972...and by proof maybe the HO meant proof of PTSD, and not missing proof of a claim.........

Does your husband get SSDI for PTSD? If so when did SSA make that award?and what was the SSA's EED?

I certainly hope he gets the Discharge Upgrade and I also hope there is some way he can get retro.....

but, that ,in my opinion would be whether he filed a claim earlier than the EED VA has given to him now.

WOW, it makes me very proud of vets and their spouses who do all they can to make a wrong into a right.

And Justice should mean retro but it does not always work out that way.

 

I will be very anxious to see how others here view all this.!!!

I also will find the Hagel Memo and bump that up for all.

Edited August 3, 2016 by Berta

[Berta]

I bumped up info on the Hagel Memo and wonder if the lawyer I did the radio show with (in 2010) would be able to advise on this issue....

Hopefully someone will put the show archive link for you...Hagel Memo was regarding OTH but still it might have applicability here.

[hawkfire27]

Hi Berta, He had VA  30% for Anxiety Neurosis with Depressive feature from 1979 until it was changed to 100% P&T for PTSD in 2001 but effective (EED) 1988. The adjudicator was talking about taking his 100% back to 1972, not just PTSD. But because there was no proof of PTSD in 1972 she couldn't,  because the VA didn't recognize PTSD before the 1980's. That may have changed.

As for the incurred question, our lawyers understanding is them saying, "of course he had PTSD he was in Vietnam for 30 months." I think the 'more likely than not' statement was interesting to.  

My husband received SSDI in 1989 from social security for an "Anxiety disorder" the ABCMR has those records including the diagnostic summaries from VA and civilian psychiatrists. In fact it is the same date that his 100% PTSD was taken back to.  I am assuming the VA fell in line with the SSA's effective date and they are just days apart.  

Obviously I hop that this advisory opinion has a positive impact on his case. What is interesting is that he hss a 'General under honorable conditions' discharge. Which is not addressed in the Hagel Memo but he seems to be being treated as though it was. It will be interesting.

 

[john999]

If your husband gets a discharge upgrade and is awarded some kind of medical discharge with a pension that is your proof that his VA claim should be back dated to a day after discharge.   Now there may be some issue since usually a soldier either gets military pension or VA disability unless he served 20 years.  There are not many vets who get discharge upgrades which include medical discharge with compensation.   This is a big win.  I lost such an appeal myself.   I did get an upgrade but no pension.

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[hawkfire27]

Hi John999, thank you for your reply. Was your appeal based on PTSD. If so you can request a reconsideration of the BCMR denial based on the new and material evidence that is the Hagel Memo. As I stated my husband is a general discharge not a OTH as the memo describes but they are reviewing it again anyway. He was denied in his initial BCMR appeal of discharge. But here we are, and this time they are getting advisory opinions etc which indicate they are processing it correctly this time. It may be worth giving it another go. We just submitted the original BCMR discharge upgrade and medical retirement request with the addition of the Hagel Memo and a DD For 149 explaining it was a request for reconsideration based on new and material evidence.   

Apparently, and correct me if I am wrong, but the BCMR assesses upgrade requests because of an injustice based on the regs at the time, but in upgrading they are required to use the current regs when determining what a veteran is entitled to?  Which should mean that 38 CFR 4.129 would be enforced today. Meaning if PTSD resulted in his separation he would be granted a minimum 50% rating by the military. Hmmmmm I wish I knew how the chips would fall on this one, it is hard not to get excited by the advisory opinion, but the reality is the BCMR can ignore that opinion if they want to as they have the right of independence from any military branch including the army's advisory opinion.

[Bubba65]

Hi hawkfire27,  I am extremely interested in your case as I have also requested a reconsideration from the ABCMR. Just wondered if you have any update. My sincere best wishes for a favorable outcome for you and your husband.

Edited December 17, 2016 by Bubba65
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