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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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    • Howdy all,

      The VA DRO denied my claim for an earlier effective date for my sleep apnea. They originally denied it in 2008 but granted it in Nov 2019 secondary to my GERD. I was rated for GERD in 2001. So I had it in 2008. I have attached the 2008 denial, 2018 approval, and the NOD SOC. All of my medical files and the medical articles and VA Citations referenced were in existence in or before Jan 2008. The only new items were the NEXUS letter from Dr Bash and a few extra buddy letters. The original denial states that my medical records show no diagnosis or treatment and only isolated complaints of symptoms. The denial does not even list my wife's or my lay statements as evidence reviewed. I have symptoms listed numerous times in my SMRs:

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Berta

CUE and BVA 2020

Question

Vets are fiing CUEs more and more these days.

May of them fail at the RO level but some are awarded at the BVA:

https://www.va.gov/vetapp20/files1/20000710.txt

Of the 2020 BVA  decisions posted so far, at the BVA web site, 277 contain CUE, and BVA decisions helped me tremendously over the years as they show what really is or isnt a CUE.

I was interested solely in the PTSD CUE decision:

"The Veteran contends that he is entitled to an earlier effective date prior to January 11, 2012, for his service-connected PTSD. The Veteran specifically contends that his PTSD should be service-connected back to September 2009. As there is a balance of both positive and negative evidence of record, resolving all doubt in favor of the Veteran, the Veteran’s claim of an earlier effective date for service connection for PTSD back to September 11, 2009, is warranted.

Procedurally, the Veteran filed for service connection for PTSD in September 2009. A December 2009 rating decision denied service connection as the RO found the Veteran did not have a diagnosis of PTSD. The Veteran filed a timely NOD in January 2010 which was acknowledged in a Deferred Rating dated September 2010. A Statement of the Case (SOC) was issued in May 2012 that found the Veteran’s stressor was conceded but the Veteran still had no diagnosis of PTSD. The Veteran then filed a VA Form 9 in July 2012 which was addressed in a March 2015 rating decision with a grant of service connection for PTSD effective January 11, 2012.

The Veteran then filed a timely NOD as of April 2015 requesting an earlier effective date for his service connection of PTSD back to March 2009. A SOC was issued January 2018 denying an earlier effective date and the Veteran filed a VA Form 9 in April 2018. The Board finds that the December 2009 rating decision is not final and is still on appeal."

( the stressor was conceded but NO PTSD diagnosis until January 2012....???? until the BVA found the March 2009 diagnosis in his records)

"After thorough review of the Veteran’s record, specifically his VA treatment records the Board finds that the Veteran was diagnosed with PTSD in March 2009 that was found to be directly related to his active duty service in Vietnam. See CAPRI records submitted October 2012. As the Veteran did not file his claim for entitlement to service connection until September 11, 2009, the Board is able to grant service connection back to the date of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Therefore, the earliest date that the Veteran can receive is September 11, 2009. When there is an approximate balance between positive and negative evidence, or equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. The evidence before the Board here indicates that the Veteran’s claims must be resolved in favor of the Veteran, as the benefit of the doubt doctrine is applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board finds that the Veteran is entitled to an earlier effective date for service connection for PTSD as of September 11, 2009."

Although the BVA found this PTSD claim was still an open issue on appeal, the BVA granted the PTSD CUE.

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Here's the thing, yes BVA granted service connection but now the veteran's PTSD claim must be adjudicated by the VARO. I think BVA granted his claim so the local VARO has to award the veteran's PTSD claim and pay a retro payment.  Now that the effective date has been established, the veteran has to wait for his rating decision and hopefully the local VARO will rate his claim correctly and if not the veteran will have to file a new NOD for his rating percentage.  I was just thinking, how many CUE decisions are in one claim? By BVA finding the veteran's claim still open and pending, this just lowers the threshold of CUE making it a lot easier for the veteran and I do believe returning the benefit of doubt.  Since it has been about ten years, the local VARO will probably try a Fenderson rating but if the veteran can prove he met a particular rating under 38. CFR 3.156, he can be retro for that rating over the entire time.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

https://www.law.cornell.edu/cfr/text/38/3.156

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quote from ms berta

''

 The evidence before the Board here indicates that the Veteran’s claims must be resolved in favor of the Veteran, as the benefit of the doubt doctrine is applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board finds that the Veteran is entitled to an earlier effective date for service connection for PTSD as of September 11, 2009."

Although the BVA found this PTSD claim was still an open issue on appeal, the BVA granted the PTSD CUE.

''After thorough review of the Veteran’s record, specifically his VA treatment records the Board finds that the Veteran was diagnosed with PTSD in March 2009 that was found to be directly related to his active duty service in Vietnam.''

 

So does this mean the veteran will get an earlier effective date for PTSD AS  CUE  back to the date he said he was diagnosed  on March ** 2009?

it would be 6 months more pay and a good hunk of change added in.

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Posted (edited)

No, in a way the BVA did help the veteran by granting his claim but the effective date is September 11, 2009. Even though the veteran was diagnosed with PTSD in March of 2009, the veteran did not file a claim until September 11, 2009.

Edited by pacmanx1

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Posted (edited)

Oh ok I never read where he did not file his claim until Sept 11-2009  but figured they used the when disability first arose as entitlement date for the benefit of doubt

. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet.

but if they did go back to Sept 9/2009   he is lucky they went back to that date. (jmo)

 

Edited by Buck52

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They did-

Therefore, the Board finds that the Veteran is entitled to an earlier effective date for service connection for PTSD as of September 11, 2009."

Actually I don't think I should have posted this as a CUE award because the claim was still open.

If it had been closed and denied with the same "no PTSD diagnosis" BS, it would have certainly been a valid CUE- but in this case the BVA applied Relative Equipoise ( not a CUE basis)because of the error VA made in not knowing he already had been diagnosed by the VA.(which was a CUE)-violation of 38 CFR  4.6

In any event this case does support something I have stated here Many times.

Unlike the ROs, the BVA has Lawyers, and they not only can read, they also will carefully review everything they have.Lawyers LOVE evidence.

If you have a case at the BVA with a docket #, you can send any additional evidence directly to them.

How come there is no accountability on stuff like this-meaning why doesn't this crap fall back on the RO idiot who did not properly follow 38 CFR 4.6- ?

How many claims did that person deny because they did not know simple and basic VA case law?

Why have our so called vet orgs put up with that crap? Don't these Vet reps and VSO know basic VA 101?

38 CFR 4.6 is basic VA 101 and I think that was the prime violation is every single CUE I had, personally.

When anyone post their decision here with the evidence list, CUE is the first concern I seek in the decision.  38 CFR 4.6 is my Favorite Regulation!

https://community.hadit.com/topic/60717-the-power-of-38-cfr-46/

 

 

 

 

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    • Howdy all,

      The VA DRO denied my claim for an earlier effective date for my sleep apnea. They originally denied it in 2008 but granted it in Nov 2019 secondary to my GERD. I was rated for GERD in 2001. So I had it in 2008. I have attached the 2008 denial, 2018 approval, and the NOD SOC. All of my medical files and the medical articles and VA Citations referenced were in existence in or before Jan 2008. The only new items were the NEXUS letter from Dr Bash and a few extra buddy letters. The original denial states that my medical records show no diagnosis or treatment and only isolated complaints of symptoms. The denial does not even list my wife's or my lay statements as evidence reviewed. I have symptoms listed numerous times in my SMRs:

      a. Medical visit dated 24 Feb 76 for problem sleeping and depression.
      b. Physical exam dated 24 Jan 79 listed frequent/severe headaches" dizziness, and
      nervousness.
      c. Physical exam dated 07 Nov 83 listed frequent/severe headaches.
      d. Physical exam dated 16 Jan 85 listed frequent/severe headaches.
      e. Admitted to hospital 05 Aug 86 for chest pains and anxiety.
      f. Medical visit dated 14 Jul 87 for problem sleeping and morning confusion.
      g. Physical exam dated 25 Feb 88 listed dizziness.
      h. Physical exam dated 07 Oct 91 listed frequent/severe headaches
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