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Healingfor777

Reopened Previously Denied PTSD due to MST claim

Question

Has anyone been successful in receiving retroactive back pay in a granted PTSD claim due to MST that was previously denied prior to 2011 based on the VA requesting you to resubmit your claim for re-evaluation due to almost half of the MST claims submitted prior to 2011 being denied in error?  If so, is that a CUE type of claim?  I also didn't complete the appeals process.  I filed a NOD, but didn't fight through the appeals process.  I refiled when a VSO told me of the changes to the law and VA OIG report.

Edited by Healingfor777

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I think I just answered some of this in another topic here-

Many veterans have won more retro based on filing CUE claims.

Even widows like me have had successful CUEs.

However, we need to see the decisions,as I mentioned ,in your other post.

Also we have MST vets here, male and female, and one had a very long ordeal with VA, but he did succeed.

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As Berta said, the best advice would be after reading your file..including both decisions..

While Berta has done a fantastic job winning Cue claims, most of the rest of us are not as skilled as she is in finding and filing valid cue claims.  

Just because Tiger Woods can get away with a 7 iron, does not mean its the best for you if you have a lower skill set than him.  You may be better off with a 9 iron.  

Remember, you can file a cue at any time, but you always give up benefit of the doubt  (BOD) with CUE, no matter when you file it.  

I "hang on" to my BOD for dear life, because many many claimants get their benefits and, in the reasons and bases, it says something like the claim is in equipose and the Vet gets BOD.  You see those in both VARO and BVA cases.  (Equipose, BOD, etc).  

So, if you filed a 3.156b (this assumes your most recent decision is within a year) then you get to keep BOD.  

But if you file a cue, you hand over your BOD to VA.  

You can always file a cue, but appeals and 3.156 b need to be done within a year.  

Exception:  3.156c can be done anytime if your service records were lost then found again.  

For the reasons above, if I have a good alternative to Cue, I take that path.  Only if cue is the only way to get the effective date I want do I consider a cue.  

You need to understand that cue is all about effective dates..it wont get you benefits to which you are not entilted because Va forgot to dot an i, or if they forgot to do DTA.  

Failure of va to do DTA is not cue.  The error must be outcome determinative.

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    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
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    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


      2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

       

      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.

       

      Does this help?
    • Thanks for that. So do you have a specific answer or experience with it bouncing between the two?
    • Tinnitus comes in two forms: subjective and objective. In subjective tinnitus, only the sufferer will hear the ringing in their own ears. In objective tinnitus, the sound can be heard by a doctor who is examining the ear canals. Objective tinnitus is extremely rare, while subjective tinnitus is by far the most common form of the disorder.

      The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.

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