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CUE and BVA 2020


Berta
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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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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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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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Yep. That wasn't a CUE. I try to teach that important fact. A CUE can only exist on a prior final claim. 

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On 4/27/2020 at 6:25 PM, asknod said:

A CUE can only exist on a prior final claim. 

I am going to have to disagree unless you can tell me where that comes from.

In M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions 

1.  Finality of Decisions - this discusses binding and finally adjudicated claims

 

Introduction
This topic contains general information on revising prior determinations, including
binding determinations
significance of binding determinations
finally adjudicated claims
binding but not finally adjudicated claims, and
revising binding decisions. 

III.iv.2.B.1.d.  Binding but Not Finally Adjudicated Claims
A claim that has not been finally adjudicated (which includes claims where a binding decision has been issued but the appeal or decision review period has not expired) is still considered a pending claim under 38 CFR 3.160(c). 

III.iv.2.B.1.e.  Revising Binding Decisions
Use the table below if revising a prior decision that is binding as defined in M21-1, Part III, Subpart iv, 2.B.1.b to determine which revision authority(ies) can be applied.

The table lists CUE for every case.

4.  CUE

 

Introduction
This topic contains information on CUEs, including

definition of a CUE
provisions of 38 CFR 3.105(a)
identifying a CUE
considering requests for revision based on CUE
responding to invalid requests of CUE
determining a case of CUE
applying the benefit of the doubt under 38 U.S.C. 5107(b)
approval of ratings prepared under 38 CFR 3.105(a)
preparing a CUE decision, and
tracking Compensation CUE decisions in the CUE log.

Notes:
CUEs are undebatable.  If it is not absolutely clear that a different outcome would have resulted, the error complained of cannot be clear and unmistakable.  
CUEs can be alleged by a claimant or discovered by VA during the adjudication of a claim

This certainly seems to rebut what you have stated about CUE only existing in prior final claim.

 

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 Explore the myths of CUE Here, you may find your answer..

https://helpdesk.vetsfirst.org/index.php?pg=kb.page&id=1874

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You answer your own contention at the beginning of your thread with the M 21 cite:

<<< M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions 

1.  Finality of Decisions - this discusses binding and finally adjudicated claims

 

A finally decided claim is one that has been final for over a year-i.e. you have one year from a decision to appeal it by filing the proper form depending on it being in Legacy or the new AMA. Once a year has passed, it is unappealable and can only be attacked via the presentation of new service department records never before associated with the claims file §3.156(c)(1)(3)(4) or.... (Big Or) by the filing of a Motion to revise (MTR) the prior decision based on clear and unmistakable error (CUE). I suppose you can also say it's a pending or unadjudicated one too based on Richardson jurisprudence but that gets into a grey area as to whether it's still viable or truly a CUE.

Akles v. Derwinski was the first to bring up CUE in a finally decided claim. Russell/Simpson expanded upon it. I use the M 21 to overturn an error in a viable claim when dealing with VA. You seem to look at CUE as one thing only. In reality, it could be 1)a true finally decided claim error or; 2) an error in an ongoing decision that you contest.

From Rosinski v Wilkie 

 

correction of error

 

According to the Secretary, a lack of access to draft rating decisions does not prevent the petitioner from representing his clients because he still has recourse to an M21-1 provision that provides for correction of rating decision narratives or code sheets even after promulgation of draft rating decisions. OA at 42:20-43:12; see also M21-1 ADJUDICATION PROCEDURES MANUAL, pt. III, subpt. iv, ch. 7, sect. B

Snyder v. Nicholson, 489 F.3d 1213, 1216 (Fed. Cir. 2007). It does not, however, address what those agents and attorneys can or cannot access, or what actions they can or cannot take. Thus, the majority's attempt to apply this broad statute to the specific circumstances of Mr. Rosinski's petition is tenuous at best. Further, the "benefit" that the majority finds VA to have denied Mr. Rosinski is too nebulous to find that its denial constitutes a concrete injury. See ante at 5. Although the majority theorizes that time and effort might be saved by review of draft decisions, it offers no direct support for this proposition, which is especially problematic given that VA's M21-1 provides other avenues for quick correction of rating decision errors. See Jan. 26, 2018, Order at 7 (citing M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a) (the RO "must . . . correct the Narrative section of a rating decision if after the claimant has been notified of the decision it is discovered that inaccurate information was provided such as service dates or entitlements)); id., sec. B(3)(b) (requiring correction of errors on the rating codesheet); id., sec. B(3)(c) (requiring referral of an erroneous decision "to a decision maker to issue a new decision" once an error has been identified).

Fixing it III.iv. 7 B.3.c

Rosinski v Wilkie 2018 -0678

According to the Secretary, a lack of access to draft rating decisions does not prevent the petitioner from representing his clients because he still has recourse to an M21-1 provision that provides for correction of rating decision narratives or code sheets even after promulgation of draft rating decisions. OA at 42:20-43:12; see also M21-1 ADJUDICATION PROCEDURES MANUAL, pt. III, subpt. iv, ch. 7, sect. B.

Please note that  the VA Secretary declines to call a current live controversy error a CUE and prefers to describe it as a ratings "error" correction. Thus I stand by my characterization of a CUE being a "finally adjudicated" error versus a live controversy. Shoot. I find "CUE" in a lot of my new AMA decisions. However, I do not rush to file a Motion to revise. I just call up or email the rater and tell them to fix it. VA is free to refer to it as a CUE but the CAVC doesn't recognize it semantically until the appeals period expires and you file the MTR. Since I fight CUE at the Board or the CAVC, I do not rely on M 21. You'd get laughed out of a BVA videoconference if you started quoting M 21 as law to a VLJ. 

 

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That information from helpdesk is not correct.This issue came up before here-

I tried tocontact them but they never responded, and as you can tell, they really dont want us to know who they are.

I hope no one depends on their interpretations of CUE- and also they are incorrect,on survivors and CUE.

This is one of their errors:

"A veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds that the claim does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney." 

I have claimed multiple CUEs on a 1998 decision.

Here is another error:

"The spouse of a deceased claimant has no right to file a CUE claim because "a survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE" as 38 U.S.C. section 5109A does not "provide[] for another person, even a survivor, to seek correction of a decision on a veteran's claim."  Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998)."

I am living proof that is incorrect.I Lolled when I read that.

And they also support the ludicrous mantra that CUE can only be filed on a past unappealed decision.

I don't know where they are gettin this stupid information.

They probably work for the VA as claims experts.🥴

 

Edited by Berta
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Thank you Kanewnut for that SUPERB  and absolutely accurate advice based on established VA case law.

You should be a lawyer!

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Ms Berta quoted

''That information from helpdesk is not correct.''

Why do you say this berta? what is not correct about it?

This  below may not be correct  as we all know you have filed CUE on your decease hubby.

The spouse of a deceased claimant has no right to file a CUE claim because "a survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE" as 38 U.S.C. section 5109A does not "provide[] for another person, even a survivor, to seek correction of a decision on a veteran's claim."  Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998).

but does that make all of this incorrect? about the CUE?

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This is a false and unfounded statement:

"A CUE can only exist on a prior final claim. "

The sole VA change to CUE regulations ,in decades, is what Kanewnut posted, as to the M21-1MR excerpt.

It states:

"CUEs can be alleged by a claimant or discovered by VA during the adjudication of a claim"

'During' is the key point I had made to Sec Shulkin, with my personal evidence ,I enclosed, as copies of my CUEs and the VA's reversals, within the appeal ( the 'adjudication' period).

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015808/M21-1,-Part-III,-Subpart-iv,-Chapter-2,-Section-B---Revision-of-Decisions

As I said that M21- 1MR change resulted from a letter I wrote to former Secretary Shinseki....as well as the extension of NOD deadlines to Reconsideration requests.

If you have a question on that I can give you Dr. Shulkin's phone number.

I would have to give it to you via email.

You can send him the link to this discussion,if he gives you his email addy.

He is still actively works for the betterment of the health of veterans.

Regarding Haines, cited by Helpdesk:

I suggest you read Haines V. West:

https://www.leagle.com/decision/19981452154f3d129811283

 

That shows why Helpdesk's statement is Wrong.

The widow never filed a CUE-the dead veteran did. She never filed properly for accrued, and was not eligible anyhow.

My CUEs were based on my accrued status, as a survivong spouse.

We have vets here who followed my advice and had a denial reversed under CUE within a very short time-because they filed the CUE ASAP, within the appeal period.

I have listed their names here under a search.

I do not think the helpdeck has ever opened any of the VBMs, 

and probably most vet reps, VSOs, and agents never purchase it either.

NVLSP has considerable info in every VBM since 1991, they have published, and by reading BVA denials and awards of CUE -ever since BVA came on line, that is where I honed in my knowledge of CUE.

I am tired of coming to this site and having to justify  established VA case law-

vets have to believe who they want to believe- and if they get screwed so be it-

and remember -accredited agents have a boss - it is the OGC.

I am preparing my complaint to them.It will be easy , it is basically copying the same evidence that caused Dr. Shulkin to change M21-1MR.

I already copied the response I got from POTUS, thanking me for my suggestions, as evidence.

They cannot accept snail mail due to COVID- They can take attachments at the email OGC accreditation addy I posted in a different thread the other day.

Maybe that will stop these time wasting discussions , that contain unfactual  amd unfounded statements regarding CUE claims, by individuals who have never even succeeded in  a CUE claim.

 

 

 

 

 

Edited by Berta
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Alex posted:

Quote

.... the VA Secretary declines to call a current live controversy error a CUE and prefers to describe it as a ratings "error" correction. 

THIS is apparently what all the "splitting hairs" is about.  

From the Veteran's standpoint (and this is what hadit is  about..Veterans..not attorneys, not non attorney practioners, and not VSO's), Berta's method provides a quick resolution to the problem and gets the benfits delivered quickly.  Most of us dont have phone numbers of VARO raters...VA seems to make sure that does not happen.  So we file a Cue and accomplish the same result.   

I say we leave the defination of "CUE" vs "rating error correction" up to the CAVC should they be so inclined to take up this contorversy.   These definations may even be "ripe" for such an appeal.  Until/unless  the CAVC decides to distinguish or merge the definations of  "cue" with a "rating error correction", it appears this controversy will continue.   Even if the CAVC has already done so, or chooses to take up the controversy in the future, it probably wont matter, because many of us wont read the CAVC opinion, including raters, and the rest of us it probably wont matter.  

Heck the CAVC took years in deciding the defination of "claim" and Im not even sure that is fully resolved either.  The term "claim" sometimes means "issue in a claim", full claim, pending claim, unadjuticated claim, cue claim, appeal, appeal on review, or a few others.  

It may even be in a Veteran's best interest to "relabel" the Cue as a "ratings error correction", but Berta indicates most raters are not splitting those hairs, and instead views the Cue she files as a "rating error correction".  

My advice is for Alex and Berta to look at the greater picture (helping Veterans) and not focus on whether one is "right" or not about such a defination.  The question of whether one is "right" or not is always an opinion.  Even the CAVC posts "opinions", so let's just get along and get to the business of helping Vets, a passion in which Berta and Alex share.  

Lets just all get along, put Veterans first, not being right first.  

 

Edited by broncovet
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Is it Hadit's new policy Not to correct false advice?

It is not a question of being right or wrong....the issue involves established VA case law.

I have emailed the OGC about this, giving his name and accreditation # 39029,asking them if they would accept my evidence by snail mail- the email alone Alex sent me is 5 pages long, as a print out.

I don't make stuff up here. I do not manipulate VA regulations. VA does enough of that crap themselves in order to deny.

This has been going on too long, and nothing is done about it.

If we do not correct bad advice , we are condoning it. How does that help any vet here?

Alex can retract his bad CUE advice  here or deal with the OGC about it, when they get my full  complaint....and the evidence. He made another false , Phenomenally stupid and ludicrous statement about the BVA-in above thread- no one caught it except me, and that too will be part of my complaint.

What is everyone afraid of?

When he stated in email to me that he held Tbird's POA, as I stated in a different thread I do not care if he holds the POA of Pope Francis- and I do not even know is he actually does or not-

and it does not give him the right to spout ridiculous statements that have no basis at all in 38 CFR. 38 USC, M21-1MR or any other established VA case law, whatsoever. And it does NOT help vets at all.

 

 

 

 

 

 

 

 

 

 

 

Edited by Berta
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Great Post broncovet,

I always wanted to know what came first

 The Chicken or The Egg??

I've always had the thought helping a Veteran in anyway I can if I am wrong on some of the Advise I give I know here on hadit  there's a lot more highly intelligent Individuals educated in VA law and regulations and criteria set forth in the CFR's to chime in and correct me or   or others  that post,  so that the Veteran in need  can work his claim and be steered in the right direction, we all are never to old to learn.

And here on Hadit  Thanks to Ms Tbird  we all get this information and advice Free of charge  and not have to worry how were going to pay an attorney or claims agent, if a veteran will listen to these great folks on hadit  thats all he needs and apply his claim accordingly.

I am so glad we do have these type individuals, if it was not for these elders here on hadit  I certainly would not be where Iam today   with my service connection &Rating and a Home to live in. the truth be known I'd more likely as not be 6 ft under.

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"It may even be in a Veteran's best interest to "relabel" the Cue as a "ratings error correction", but Berta indicates most raters are not splitting those hairs, and instead views the Cue she files as a "rating error correction".  

No that is not quite right-

I file CUEs as a Clear and Unmistakable Error, under auspices of 5109 A. I then refer them to and enclose the decision that holds the CUE and state what legal errors they made and why they are to my detriment.

Easy as Pie.

Kanewnut's post  on M21-1MR and CUE is correct-

Broncovet -why aren't you commenting on what he said?

I will wait for you to do that.

Alex has been questioning me regarding CUE for over a year or more- and nothing is done to stop it-

CUE is not controlled by me, the regulations control CUE, whether filed in the appeal period or filed on a very old decision that was never appealed.

Of course one has to be able to read the regulations to get it.

Please opine on what Kanewnut said- re: M21-1MR.

 

 

 

 

 

Edited by Berta
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I guess we all should be thankful we have the right to file  CUE  to help get our deserved benefits, this is to include the widows of  deceased Veterans. ....>and no better teacher than Ms Berta.

I realize she must get tired of repeating her self here on hadit and re posting things she has posted about so many times here on hadit .

I just hope she don't get tired of it and leave  she has been a God Send for all veterans as well as the widows of veterans.  she does this all free and runs her farm and helps in her community all unconditionally .

In my opinion  as for as VA Claims go rather first time claim  or claim for increase /or EED, or a CUE Claim  Ms berta does it all  and for all her work I will be forever grateful and with all due respect  I  place this lady on the highest pedestal there is.

And I recommend that all Veterans reading this read all about what she has posted here on Hadit through out the years.

Thanks to Ms Berta and all she does here on hadit to help all of us.

You Rock  Ms Berta

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I would have to say   Veterans medical records are the most important of all when it comes to the VA decision makers. and help proving what we claim. without these records  most claims would be denied.

finding a lost medical records is a veteran  best friend

so all Veterans dig deep for those records  and keep on digging..

you will be surprised as to what you may find or come up with.

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Ms Berta quoted

Is it Hadit's new policy Not to correct false advice?

My best answer

Of course not. we all can agree to disagree while showing respect to each other.

Edited by Buck52
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This thread is over 365 days old and has been closed.

Please post your question as a New Topic by clicking this link and choosing which forum to post in.

For almost everything you are going to want to post in VA Claims Research.

If this is your first time posting. Take a moment and read our Guidelines. It will inform you of what is and isn't acceptable and tips on getting your questions answered. 

 

Remember, everyone who comes here is a volunteer. At one point, they went to the forums looking for information. They liked it here and decided to stay and help other veterans. They share their personal experience, providing links to the law and reference materials and support because working on your claim can be exhausting and beyond frustrating. 

 

This thread may still provide value to you and is worth at least skimming through the responses to see if any of them answer your question. Knowledge Is Power, and there is a lot of knowledge in older threads.

 

 

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    • Question B. I may have PTSD- how can I be sure?
      • See how the details below give us a better understanding of what you’re claiming.
    Rephrase the question: I was involved in a traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?
     
    This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial of your claim?”
     
    Note:
     
    • Your first posts on the board may be delayed before they appear as they are reviewed. This process does not take long.
    • Your first posts on the board may be delayed before they appear as they are reviewed. The review requirement will usually be removed by the 6th post. However, we reserve the right to keep anyone on moderator preview.
    • This process allows us to remove spam and other junk posts before hitting the board. We want to keep the focus on VA Claims, and this helps us do that.
  • Most Common VA Disabilities Claimed for Compensation:   

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  • VA Watchdog

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    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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