Looking for some advice...

[CH88]

Hello everybody, 

I wanted to post this under the RAMP program but seems to be disabled or discontinued area to post. Anways short background is I a filed claim for anxiety and PTSD in Sept. 2016 was denied, appealed to DRO Aug. 2017, accepted to be put into the RAMP program Aug. 2018 in Supplemental claim with the initial completion date to be June 8th 2019. Called PEGGY yesterday to find out if they have had any movement and was told by individual that he really doesn't see anybody in RAMP anymore. Asked if he could dig a little deeper and he stated he would send an inquiry to the RO dealing with my claim (assuming its still in Phoenix AZ). So I checked VA.gov today and now my estimated completion date was pushed out from a completion date of tomorrow to July 10th, 2020. I thought that RAMP was a pilot program that basically the VA was attempting to complete most claims submitted for the results and find out if this new appeals process would work? Maybe I'm wrong but it seems like I should have just stayed in the DRO and not taken the risk if they are going to take the same time to complete if I didn't opt into RAMP. 

I was initially denied for mental health disabilities due to my psychologist doing the C and P exam (in 2016) stating "I cannot answer whether the disabilities started in service without mere speculation." Then the VA asked her to give an answer along the lines of most likely or not, direct, less likely, etc. She wouldn't answer and I was denied benefits. I had an IMO which gave me a an "at least likely as not" for service connection and filed an appeal. Then during this RAMP in March 2019 VA sent me to another C and P exam offsite and was given the same "at least likely as not" for anxiety service connection. I was diagnosed with anxiety, insomnia, shortness of breath/panic attacks during service which seemed kind of straight forward when applying for anxiety but I guess not. 

I guess I am asking is there anybody else out there that has a RAMP with a completion date of July 2020 or later? Does the claim seem relevant, meaning diagnosed with anxiety in service and given diagnosis of anxiety from VA mental health/private provider within few months of recent C and P? Is RAMP a long term appeals process or should I be hounding my back burner DAV rep. who seems to be busy all the time? Also I have been in a preparation for decision phase since the last C and P exam which was March 2019, for all my other claims once it hit this stage it went a lot faster. Any advice would be great, thanx!

 

Edited July 31, 2019 by CH88

[Buck52]

CH88,

Yes I agree  you show to have been diagnose  with anxiety on your ETS  Sheet

Unfortunately these examiner love to play king of the hill  , some don't read our evidence when its right there in front of them, they need to be held accountable  for this and be demoted or just flat out fired from their job/maybe some of the other examiner may start to read all of our evidence.

for what it causes a veteran to go through  these idiots need to be fired.

Being what the C&P Examiner's  put in their report or the boxes they check is crucial in the raters decision.

About all we can do is make sure we file our NOD in a timely manner   or stand up to CUE.

Edited June 10, 2019 by Buck52

[Buck52]

16 hours ago, GeekySquid said:

@Buck52

This is a good suggestion. In terms of sequence though I want to get the EED first by filing CUE. There are other things this affects that I cannot move forward on until I get that EED.

As I understand things I cannot have a CUE and a NOD on the same issue running at the same time, even if they come from different awards.

Consider filing a Reconsideration?

filing a NOD is saying that you disagree with the VA's decision based on the evidence and how they veiwed them. A "Reconsideration" is asking the VA to take another look at the claim because the claimant has new evidence that they think may change the VA's prior decision. 

With this said  there's been known fact that a Reconsideration don't exist at the R.O. Level...but will at the BVA

Quote from asknod.org (blog)

''For the record, a Motion for Reconsideration exists at the Board of Veterans Appeals only after you have been denied on appeal. There is a formal process for it that requires you to file for it within 120 days of your denial. There is no guarantee you will be granted one. It must be supported in law or evidence that rebuts the decision with substantial evidence that a legal mishap occurred. It cannot be a gripe that you feel the Judge is racist or biased towards women.''

''A similar mechanism exists at the Court of Appeals for Veterans Claims called a request for a panel decision following an affirmation of the BVA decision by a single judge in a memorandum decision. Again, to prevail and be granted a panel ''decision, you must present a novel appeal that asks for a precedental decision based on a situation that represents case law never before decided. It is referred to as a matter of first impression.''

Edited June 10, 2019 by Buck52

[Buck52]

16 hours ago, GeekySquid said:

@Buck52

This is a good suggestion. In terms of sequence though I want to get the EED first by filing CUE. There are other things this affects that I cannot move forward on until I get that EED.

As I understand things I cannot have a CUE and a NOD on the same issue running at the same time, even if they come from different awards.

Consider filing a Reconsideration? or Reopen claim?

''Asknod.org (blog) says Reconsideration does not exist at the R.O. however he goes on to say it exist at the BVA''

Filing a NOD is saying that you disagree with the VA's decision based on the evidence and how they veiwed them. A "Reconsideration" is asking the VA to take another look at the claim because the claimant has new evidence that they think may change the VA's prior decision. 

Some more information on EED

From attorney Chris Attig   from his VLB(Veteran Law Blog

If the decision assigning the effective date has become final, the only means by which a Veteran – or their surviving spouse –  may be able to obtain an earlier Effective Date is by a collateral attack on the regional office or the decision of the Board of Veterans’ Appeals that assigned the effective date.

That collateral attack is done through what is called a “CUE” claim, or a Motion to Revise an Effective Date based on Clear and Unmistakeable Error (CUE).

Now, to be sure, this isn’t the only type of CUE Claim.

I looked at a C-File a couple weeks ago, where the Air Force officially corrected a soldier’s medical records to say that a  soldier had contracted a particular disease while on Active Duty in the Air Force.

They wrote a fancy memo on Air Force letterhead, and an honest to goodness flight surgeon signed the letter.

The VA ignored it, and denied the Veteran’s claim for service connection of that condition.

The Veteran didn’t appeal, and he came to me about 3 years after the Ratings Decision denied the claim.

My typical approach would be to first Reopen the Claim for Service Connection with some New and Material Evidence, get the Veteran service connected, and then appeal the denial of the original effective date.

Once that appeal was exhausted – I might file a CUE claim to get the earlier effective date.

However, in this case, we opted to go with an approach of filing a CUE claim first, since the error was so clear, and so unmistakeable, that I felt that while the VARO will certainly deny it, no BVA Judge could make a cogent argument that there was not CUE.

Point is – the CUE claim in that example went to the element of nexus.

But I much prefer, wherever I can, to use the traditional appeal process or the reopened claim to deal with the first 3 Pillars of a VA Claim, and save CUE claims to protect the Effective Date.

Be smart about it, do your reading, and make your own decision.  Just be careful with CUE.

The CUE Claim for an Earlier Effective Date Can Be Dangerous!

CUE Claims are some of the hardest claims that a Veteran can make.

I’m NOT saying that you should not file a CUE Claim – they are another Arrow in the very small Quiver that Veterans are given.

Just go into a CUE Claim with your “eyes wide open”, and spend a lot of time researching the law.

Legal Search Tip: If you are searching Veterans Court and BVA Decisions on the issue of “Effective Date” determinations, the BVA and the Court sometimes refer to effective date appeals as one type of “Downstream Issue”.  It’s an archaic term, and one that I try to use as little as possible – far too often, the BVA refuses to adjudicate Impairment Ratings and Effective Dates because they are “downstream issues”.

Use of this term paints a “rosy picture” of the claims process, and in my opinion is one of the subtle ways that the BVA condones a 3-5 year (or more) wait for benefits owing to the Veteran. 

Here are 3 things I want you to think about as you prepare a CUE Claim:

1)  A CUE claim requires a specific kind of error .

The error must be so clear that reasonable minds could not differ in reaching a particular conclusion, and one where the result would have been manifestly different but for the error.

A CUE claim is often not a claim involving interpretation of fact (although it can be); more commonly it is an administrative failure to apply the proper statutory and regulatory provisions to the correct and relevant facts.

2) CUE Claims have to meet special pleading requirements.

CUE Claims can be raised at the Regional Office or at the Board of Veterans Appeals (BVA). Depending on where and when it is raised, there are certain things you need to include.

This is one of the rare instances in a VA Disability Compensation Claim where the Veteran is best served by a claim that pleads with specificity.

3) CUE Claims can be Really Dangerous.

Most Veterans are too quick to file a CUE Claim.  Here’s an example.

I looked at a Veteran’s C-File a couple weeks ago.

The Veteran filed a Motion to Revise an Effective Date based on Clear and Unmistakeable Error (CUE).

However, the Veteran’s appeal of the decision that got the Effective Date wrong was still at the BVA.  When the BVA issued a decision on the Effective Date – of course denying it – the VA had a GREAT argument that the Veteran’s CUE Claim was “subsumed” by a Final BVA Decision on the same issue.

(This rule about a BVA Decision “subsuming” a ‘CUE Claim’ is tricky business folks, and it’s easy to get yourself in a pinch.  The result I described above is NOT always the outcome – but in far too many cases that I’ve reviewed, Veterans make their CUE claims harder – or impossible – by not waiting until all other avenues of TIMELY appeals have been exhausted).

And then there’s this trick that the VA tried to play with us when we filed an Appeal to the Veterans Court alleging that the BVA erred in not adjudicating a so-called “CUE Claim”.

 

 

 

Edited June 10, 2019 by Buck52

[GeekySquid]

1 hour ago, Buck52 said:

Consider filing a Reconsideration?

This is still at the RO level and the CUE is on a long finalized claim.

As far as I know Reconsideration is not yet an option.

As for the CUE, it is a specific legal error that is clear and unmistakable under 4.2 and 4.6

The VA raters and the C&P examiner both stated they reviewed the entire record. They did not.

The VA rater stated they used my entire service period.

The claim had 3 parts, PTSD, Tinnitus, and HL.

The PTSD C&P did use my entire service period and I was granted.

I was granted Tinnitus.

The Hearing Loss C&P stated they only looked at my first enlistment and I was denied.

The HL C&P stated they did not find specific records in my STR's but they only looked at the first enlistment.

The rater did not catch that error. This is a legal failure under 4.6 and 4.2

The decision letter omitted the information that the decision was based on only half my record.

4.6 and 4.2 apply and that is the CUE. They failed to thoroughly review my records.

It is clear and unmistakable that had they looked at all the evidence in my file they would have granted SC.

A subsequent C&P granted SC based on the same evidence in the file that the first one did not look at. This is not a difference in diagnosis. It is a difference in how thorough the file was reviewed.

SC is a property right under the Due Process Clause of the 5th Amendment. The correcting grant of SC vested me with that property right via ruling of First Circuit Court of Appeals in Cushman as modified by Gimbrill(sp?)

I will put up a draft of the cue when it is done and tag you on it.

Edited June 10, 2019 by GeekySquid

[GeekySquid]

1 hour ago, Buck52 said:

Some more information on EED

Thank you for this. I had read that on VLB.

I'll tag you in when I post the draft.

[Buck52]

Geeky  

You need to remember that its CUE if it changes the outcome of the final decision, here is the kicker if your HL is not bad enough For a % compensation but is service connected at 0%   then this will not change the out come of the decision  for compensation purposes ...They will find any and all ways to deny CUE.

However I could be wrong on this?