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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.

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Since you filed a claim and did not follow through the appeals process I would think that you would have a hard time getting retroactive back pay.  But that does not say you cannot try.  See how your claim plays out and then proceed from there.  You might be pleasantly surprised with your rating or you might have to go to the BVA.  Only time will tell, if you get denied fight all the way to the BVA.

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I am hoping I have a chance since they erroneously denied the claims and had to re-evaluate them.  Common sense would say it's how it should have originally been adjudicated.  But we all know that common sense is not a pre-requisite for employment with the VA when it comes to taking care of veterans.

I had an IMO from Dr. Ellis with some other claims on there as well.  I claimed Sleep apnea and FSAD secondary to PTSD even though they had no SC'd the PTSD.  The VA hospital had diagnosed the PTSD in 2009.  They denied the sleep apnea and FSAD based on C&P exams from NPs over a MD.  This just happened this week.  What is your advice on the fastest way to contest it and get it overturned with the new RAMP process?

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Do you mean they have denied the re-open?

Your VSO is really on the ball. They (VA) had to  revamp  the way they handle these MST claims.

Can you scan and attach here the initial denial and what appears to be a recent denial?

We need to see the evidence list as well...

If they refused to consider Dr Ellis' IMO , as new and relevant evidence, that is a potential CUE....but we do need to see the decisions.

Cover your C file # ,name, prior to scanning it.

 

 

 

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I apologize for the confusion.  They didn't deny the re-open.  They denied the new sleep apnea and FSAD secondary to MST/PTSD.  I was diagnosed with PTSD back in 2009 by the VA docs before I filed the disability claim for PTSD due to MST.  When I filed the claim in 2009 for the PTSD/MST, they denied that one.  The new decision last week granted PTSD/MST at 70% but gave me a long sermon about how since the MST was not verified they had to use markers to decide my case.  It is very negative and demeaning almost.  They said the doctor confirmed that the PTSD was related to MST so they conceded.  You will see what I am talking about.  They never stop re-victimizing MST victims it seems like.

 

Also, in 2009 when they denied the PTSD, they granted Depression at 50%, so they have combined the PTSD/MST with MDD into one as I expected.  I know they consider MDD or PTSD one mental health disorder, but that does not help you heal when they misdiagnose or deny what is really wrong with you or what really caused all of the madness we experience due to PTSD.

I am attaching a copy of the recent decision from last week and the IMO from Dr. Ellis in April 2019.  Pay attention to the careful language they use about Dr. Ellis.  They never refer to it as an Independent Medical Opinion.  They keep referring to it as a statement by Dr. Ellis attempting to link.  I think that is problematic in and of itself.  They deferred the high blood pressure, GERD, IBS and migraines decisions maybe because I had in service treatment for those and a current diagnoses that I am on medication for those.  

They denied the new sleep apnea and FSAD claims because they said there was nothing in my in service records regarding those or I was never treated for either one.  My ex-husband submitted a buddy statement regarding episodes in my sleep while we were on active duty and they didn't mention reviewing that at all.  All they mention is the C&P and in service records that they say were more persuasive.  I thought his direct eye witness account had to be considered as well.  He also wrote about the FSAD contributing to the end of our marriage because of my intimacy issues that were unexplainable at the time.

Trying to figure out if I should go the supplemental claims route with a new medical opinion and bring up they didn't consider his lay statement.  Your thoughts on that one?  Also he corroborated the FSAD.  I will cut and paste his statement in another post rather than attaching it.  I am attaching a copy of Dr. Ellis' IMO and the decision for review and assistance.  

 

Standing by

Dr. Ellis redacted report-OSA excerpt.pdf VA Decision July 17, 2019 redacted.pdf

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I do not see any CUEs here.

They did consider the Sleep Apnea opinion from Dr. Ellis.

Perhaps you could get buddy statements as to your inservice snoring.

Others can advise you on the supplemental claims route. We have much info here on the RAMP program.

This is much different from what you originally posted - as to the PTSD-which they granted as depression, in  2009.

It is good that they defered some issues.They will all need an inservice nexus.

 

 

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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?
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