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PAR

Denied then rated later

Question

I filed a claim for PTSD back in 2014 and then had my C&P. At the C&P the outside VA examiner asked multiple questions and focused on my upbringing (which was good) and my Father almost insinuating that my MST really is from my Father. When I left there I was completed traumatized because of the line of questioning and that he didn't even ask about my military time and shortly after I was denied. At the same time I had already been diagnosed by my VA Mental health Dr and through a MST coordinator. I got the denial shortly after and because I was so upset just did nothing since I didn't want to go through it again. I still went to the VA for treatment and then 2017 I requested an increase for my TBI. They scheduled a C&P and I went and the VA this time and within 4 weeks I was went from 10% TBI to 70% for TBI/PTSD making my overall rating 100%.  A few days ago,  I received my narrative and  I immediately requested my original claim of PTSD reopened requesting an effective date change to my original claim that was denied . My question is that because I did nothing from 2014-2017 will they deny or is there anything I can do to have my effective date changed since the first C&P went so wrong.

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PAR

             When a C&P exam doctor focuses on your childhood and upbringing that is a glaring red light that means the VA is searching for a non service connected cause for your disability.   If you did not file a NOD on your first denial it may be tough to get an EED for your PTSD.  However,   if the VA made the exam you got the total reason for denying your first claim and ignored your evidence you might have a chance.  I think you may need some professional claims help.  Please never discuss your upbringing with the VA again since this is the oldest trick in the book to deny a claim.   I know because many years ago it happened to me.  Stick to what happened in the military.  Don't mention any other things that happened before or since military.   You might try and find a lawyer to help you with this or at least to tell you if you have a chance.  When you speak to the VA just imagine you have been charged with murder and you are being questioned by the police.  Would you just blab and answer leading questions or would you get a lawyer?  All this stuff happened to me with the VA, so I understand you trusted them a little and they showed you their true face.    I would definitely try and get the EED back to 2014, but realize you may be in for a fight.  A reasonable mind would grant you the 2014 date but we are dealing with the VA and with money they don't want to spend.  When it protects them they stick to the letter of the law. 

 

 

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I denied anything in my childhood because there wasn't anything other than the fact the my parents were strict. I did tell him only about my military service, but his line of questioning was accusatory. Also, the C&P I just had a few months ago  and awarded the 70% was not even for MST it was for my TBI that was only rated 10%. The VA examiner made it about my MST since I am assuming he saw my mental health records. He then submitted another C&P along with my TBI.

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OK, that's good that you did not give the first exam doctor rope to hang you.  The problem is that you did not file an appeal.   I probably lost a couple of hundred grand because I did not file an appeal on my first claim in 1973.  I did attempt to fix the situation by filing what is called a CUE.  This is when the VA makes an error that is very obvious to any reasonable mind.  I had a lawyer and fought for six years and I lost just because I did not file a Notice of Disagreement and an appeal.  In my case there was evidence the VA just ignored and both me and my lawyer thought it was a clear error that nobody could deny.  Well, the VA denied it all the way to the CAVC and federal court would not hear it.  That is the bad news, but you could still try and run it by a VA lawyer to see if the VA did make a serious error in your claim.   I was just 21 years old and trusted the VA had considered all the evidence in my case.  Years later when I really looked at my rating and how they got there I knew they did not consider my private doctor's opinion.  I could not prove it because the rules were different back then and they follow the letter of the law when they jam you up when you get beyond the BVA.   Find a lawyer or even a good VSO and see what they say about it.   You have a hard row to hoe but give it a try.  You have nothing to lose.

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The way I filed the effective letter date change was by reopening my 2014 PTSD/MST claim instead of filing for a NOD or reconsideration yesterday.  I stated  that the first C&P done by an outside examiner was traumatic and was a clear and unmistakable error by the examiner based on the second examiners opinion who is a examiner within the VA. I will se how it goes.....I have not used a VSO yet and have done it on my own since Day 1.  The only thing is that it was rated in that time where many MST exams were denied. We will see what comes out of this, but from what I am seeing it doesn't look good. I was already screwed once for back pay from the VA by them making my wait time really long then making me take another C&P and then they said my conditions had "worsened" from my first c&p and only back paid me a few months which was BS. It look like the same thing will happen this time.

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This is my advice:  

1.  Order your cfile records.  File a NOD disputing the effective date if VARO decision was within a year.  

2.  In your NOD, explain what you told us, however, remember lay evidence does not refute medical evidence.  Do research on effective dates if you are doing it yourself.  If you dont feel up to handling it, then consider the services of an attorney.  80 percent of something is still more than 100 percent of nothing.  

    If you are handling your claim yourself, you will need to study up on effective dates.  Chris Attig has some good stuff on effective dates, here:

https://www.veteranslawblog.org/the-ultimate-va-claims-effective-date-checklist-how-to-get-an-earlier-effective-date-in-your-va-claim-or-appeal/

NVLSP also has a great guide on effective dates:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2 Common VA Effective Date ErrorsL.pdf

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