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

[GeekySquid]

8 minutes ago, Buck52 said:

ut is service connected at 0%   then this will not change the out come of the decision  for compensation purposes

This is part of the research I am doing now. I saw berta say that in a old post.

I cannot yet find anywhere in the MR21 or the law that allows that determination.

SC, once granted is a Property Right and even at 0% has a value as property.

The VA pays on different 0% claims, think SMC (k). Think that having multiple 0;s can be paid at 10%

I have not found anything yet to contradict that in the law or the MR 21 or in a Board case or a Court case. I don't see anything in the Federal Register that says "cue must have a 10% or greater value to be granted".

It will be interesting if they do deny on that basis and open the door to further appeal.

This is still at the RO so they might not want another fight. who knows?

 

[Buck52]

Its hard to understand the laws governing  the CUE. (MR21)

with CUE you will need to file each issue separate or file on each individualize  issue that was erred.

example

You need to have filed on what your issue of CUE would be  

the error on each contention that you CUE if you think they made error on service connection/ or the rating decision/or never read your evidence, what ever the error is on....> you need to file  if there were more than one error  you will need to file on all of these.

as I understand it anyway.

you are correct about  0% service connection  you get more than 4 I think? then its a 10% rating  but I have never seen this happen

As for as SC, once granted is a Property Right and even at 0% has a value as property.  (I don't know this) or never knew that?

''I don't see anything in the Federal Register that says "cue must have a 10% or greater value to be granted".

I can't find in the MR21 THE REGULATION on the CUE has to have a 10% or better in which to file CUE.

 IF its S.C. that was of error then a veteran should be able to CUE that BECAUSE IT WOULD CHANGE THE OUTCOME OF THE DECISION

''I don't see anything in the Federal Register that says "cue must have a 10% or greater value to be granted".

I'll keep looking into the MR21  So for I have found nothing to back up that statement.

Its been years ago here on hadit that this type issue came up and the members that made comments about it are not on hadit anymore  I can't seem to find these post

I'll keep looking and researching 

[GeekySquid]

10 minutes ago, Buck52 said:

I'll keep looking and researching 

 

thanks for looking. I have been through every thing I can think of . 38 USC and CFR,  relevant public laws, MR21, here on hadit, Google Scholar, VA.GOV, VLB, blah blah.

11 minutes ago, Buck52 said:

As for as SC, once granted is a Property Right

This comes from Cushman, Affirmed by 1st Circuit Court of Appeals and then modified by Gimbrill(sp?) again affirmed by the 1st circuit.

The issue with 0% is never mentioned in any place i have found, except the blogs here and on reddit.

just as discussion, the VA gives value to 0% SC.

First off you cannot get rated for SC at any level unless the VA has a schedule of harms on that issue.

second there is this article on VLB

https://www.veteranslawblog.org/zero-percent-va-rating/

then there is 38 CFR § 3.324 - Multiple noncompensable service-connected disabilities.

the number is 2 before it can be rated at 10%

then there is this opinion and 8 more like it, none of which say anything about needing 10% or better.

VAOPGCPREC 12-95, May 10, 1995, Clear and Unmistakable Error - Constructive Notice of VA Medical Records

i cannot find in any federal law or place where the definition of harmless error defines it as being less than XXX amount of money or X% of something.

I cannot find a definition of materially different that demands a numeric value of 10% or a dollar value.

I am going to keep looking. it is weird and I kinda want an answer but if I have to I will try it anyway.

this is the weird claim

1) 2013 they denied as having a loss but they couldn't SC

2) 2018 they denied to reopen on New and Material saying the claim was neither.

3) 2018 VA by itself decided I needed a new C&P and granted SC but dated 2018.

Once I can move around I will get to the VARO and get the C&P's and letters to the  Providers to find out why that 2018 is what it is.

I suspect they CUE"d themselves on that 2018 which makes this even more interesting.

 

[Berta]

''I don't see anything in the Federal Register that says "cue must have a 10% or greater value to be granted".

I can't find in the MR21 THE REGULATION on the CUE has to have a 10% or better in which to file CUE."

There are 2,866 decisions at the BVA web site, whereby the veteran claimed CUE over a zero percent rating.

This is one of them that was partially granted under CUE regarding

limitation of extension of the right knee, evaluated as zero percent disabling; and limitation of extension of the left knee, evaluated as zero disabling.

"limitation of extension of the right knee, evaluated as zero percent disabling; and limitation of extension of the left knee, evaluated as zero disabling."

https://www.va.gov/vetapp18/files1/1802719.t

This is an extremely unusual CUE that Carlie posted here::

https://community.hadit.com/topic/52996-bva-calls-cue-on-prior-ro-denial-vet-never-claimed-this-cue/

Nothing is impossible. One of my CUEs ,awarded, was on a disability that was never  even listed on any rating sheet or coded at all, with no percent. It was IHD( coded and awarded under AO Nehmer)

If you do a search under CUE at the BVA web site and put Zero percent in the second part of the BVA search feature, these 2,866 CUE decisions will pop up- most of them are denials but ,in any event I read hundreds of BVA denials of CUE and awards of CUE before I filed my first two CUE claims.

If "0" Is NSC-it had to be proven as SC,

then at "0" SC, it has to be proven,legally, that VA had the medical evidence at time of that decision to award at least 10%, based on the rating schedule in affect at time of the decision being cued.

"1) 2013 they denied as having a loss but they couldn't SC

2) 2018 they denied to reopen on New and Material saying the claim was neither.

3) 2018 VA by itself decided I needed a new C&P and granted SC but dated 2018."

If this is the same disability,2013- 2018, you could have a valid case of CUE....but that depends on

the evidence they had in 2013.

 

 

[GeekySquid]

7 minutes ago, Berta said:

If you do a search under CUE at the BVA web site and put Zero percent in the second part of the BVA search feature,

@Berta

Hello Berta, thank you for chiming in!

I thought you were on hiatus from here, that is why I did not tag you on this question. I was sure that as the Queen of CUE you would know the answer to my question but did not want to bother you. 

In my research I had not gotten to the BVA site yet. Thanks for that tip.

I was getting a little squirrely trying to find out where that exact situation arose in the law. I can now look at the justifications those cases used to deny and approve on SC 0% having a right of CUE.

I am so glad to know that it is not a published law or a CAVC en banc decision.

My cue is really obvious.

In 2013 my initial claim was PTSD, Tinnitus, and Bilateral Hearing Loss.

Nexus for PTSD occurred in my Second Enlistment.

PTSD Awarded 70 Percent. Demonstrates my STRs were associated to my claim

HL DENIED and Audiologist explicitly stated she only looked at FIRST enlistment. she used exact dates she reviewed.

Rating and Decision Letters both have my FULL period of Service explicitly listed. This implies that they are basing  their decision on my FULL service record and period.

Evidence section DOES NOT include the single Period of Service the Audiologist used, so it is not evident in what VA communicated to me.

VA did not do a thorough review of my files, 4.6 claim, did not follow MR21 rules, and I am looking at listing a Property Right Claim based on Due Process Clause related to Cushman. Just to put a stake in the ground on that issue, but I am not sure about that yet.

What I WON'T be doing is arguing test results or medical opinions, just that the VA did not follow  4.6 in doing a thorough review.

The VA rater quoted the Aud's statements that I did not have an OSHA STS or in service evidence of HL. Both of which are right there in my record in the parts she stated she did not look at.

24 minutes ago, Berta said:

If "0" Is NSC-it had to be proven as SC

This will be an interesting wrinkle.

When the denial hit Ebenefits it showed my claim for HL with NO percentage shown and just the word DENIED. I have a screen cap someplace.

now that the 2018 decision by VA that it is SC at 0 Ebennies has of course changed. I have to get the C&P and Letter for this exam but I think it arises from VA cue'ing itself as I had not filed another formal claim for HL. I had been denied re-opening as not NEW and Material just a couple months before.

I believe that the 2018 award approving SC rebuts any claim that the previous NSC status was erroneous but I don't have a letter specifically stating HL was 0 NSC.

It is kinda of a ticky tacky issue but I want to write the cue to forestall that type of cheap denial by the VARO.

Thanks again for that very important info.

 

[Buck52]

I had a claim for hearing loss and was denied,S.C. I nod sent in new & M evidence and was service connect at 0% 1998  ok after I was service connected  things seem to change on their decision making.

I filed for increase in 1999....with a private audiologist , they sent me to a C&P at the VA Ear Nose &Throte examiner/retested my hearing and word test...ok I went from 0% S.C. TO 50%S.C.  Within  a year.

   had I known at the time I could have CUE them on this because you do not lose your hearing that soon from bilateral noise induced hearing loss  it takes years and years...so the error in this would be they should have S.C. me for my hearing loss on the first claim back in 1998 AT 50%  NOT 0%  And failed to mention anything about IU...live and learn and read!!!

 

GEEKY read these past BVA Decisions  you maybe surprised as how they deny CUEs

you need to research back to 2013 for evidence the VA had but never used.and you were denied.  this is what you need to CUE on.