Finally received my C file.

[Wanderer]

I've been awarded 100% via TDIU (70% bipolar & 30% asthma) and I seek back pay to 1997 when I submitted my first claim for bipolar disorder.

In my C file the C&P examiner states he found and lists symptoms of my mental disorder in a 1983 inpatient report of when I was hospitalized for two weeks in a psychiatric ward. Is that sufficient for a CUE claim for the start date of my disability pay?

[Wanderer]

I'm going to reopen the claim for an EED. They clearly missed the bipolar symptoms from my hospitalization records. 

 

Edit: pacmanx1, are these the docs you referred to?

Edited January 22, 2021 by Wanderer
to include query

[Wanderer]

On 1/18/2021 at 5:14 AM, Berta said:

I read over the 1997 decision and evidence list and see no basis for CUE.

You might have a 38 CFR 3.156 basis for that type of claim  but there is not enough info here  from their award letter to really know that. 

 

 

 

I desire to reopen my claim and request an EED due to the bipolar symptoms recorded during my inpatient stay.

This statement here is the crux of the VA's error on page 2:

"The DVA development letter sent to the veteran 6-18-97 requested the veteran submit evidence in support of his claim to include medical proof of BiPolar and attention deficit disorder (s), evidence of service incurrence, and evidence of treatment for the claimed conditions from service to present. There is no evidence of response."

 

I remember they had problems finding my inpatient records that provide much of the above information requested. I had heard that military hospital had closed by then and the inpatient records sent to a government warehouse which had burnt down, so I had no way of obtaining them.

That may be an issue here. But the fact remains, we have a copy of said inpatient records now which clearly show bipolar symptoms during active duty. The record of treatment from service to present has already been satisfied. They include tons of my outpatient VA healthcare notes since around 1996 when they started treating my bipolar.

This is open and shut, yes?

[Wanderer]

On 1/18/2021 at 5:14 AM, Berta said:

I read over the 1997 decision and evidence list and see no basis for CUE.

You might have a 38 CFR 3.156 basis for that type of claim  but there is not enough info here  from their award letter to really know that. 

 

 

 

Apparently, the VA official did not look for my inpatient records that recorded evidence of bipolar disorder, or the warehouse fire  that destroyed the records may have prevented it from being added to the file by 1997. How can I tell when C file documents were actually added to personnel C file? 

Because if they did not possess the inpatient records then they are new evidence as far as 1997 decision is concerned. I'll examine the .pdf to see if there's some sort of date stamp. 

I want to file a request to reopen my case this week under 38 CFR 3.156 and make the argument about A) They misdiagnosed during active duty B) My inpatient psychiatric records are new evidence or was not examined for the 1997 decision and C) bipolar symptoms were observed during active duty, 

therefore my 1997 claim for bipolar must be honored.

What are you thoughts on this plan?

[pacmanx1]

8 hours ago, Wanderer said:

What are you thoughts on this plan?

Read over this and tell me what you think? I think this should help. You can add more treatment evidence and records. This is the regulation and some court decisions. Keep in mind that there is no open and shut claim. You are asking VA to pay you a lot of retro and they may deny your claim based on the fact that they do not want to pay you. Also, this claim may have to go to BVA, pay close attention to Clemons v. Shinseki.

The claim you want to reopen is the Jan. 15, 2019 claim and request that VA had records that were in their possession but never adjudicated or associated in this decision. Even though they list this evidence in their evidence they connect it with a QTC IMO dated March 20, 2018 and not the date of your original claim and the date that it could be actually ascertained that you filed a claim on April 4, 1997 and that you were treated, and your effective date should be Apr. 4, 1997.

3.156 New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending legacy claims not under the modernized review system. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

 (D) NEW AND RELEVANT EVIDENCE On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will re-adjudicate the claim taking into consideration all of the evidence of record. This means the rater should have reviewed your entire record and should had mention it just like they did in your prior rating.

Once a claim is reopened, a claimant is “entitled to have his/her claim re-adjudicated on the basis of all the evidence of record, both old and new.” Bernard v. Brown, 4 Vet. App. 384, 390 (1993).

In accordance with "Clemons V. Shinseki, 23 Vet. App. 1, 5 (2009)" (when determining scope of a claim, Secretary must consider the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim”). Clemons concerned VA's failure to consider a claim of entitlement to benefits for a disorder other than the one specifically claimed, even though it shared the symptomatology for which the Veteran was benefits.  The Clemons Court found that, where a Veteran's claim identifies a condition, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking benefits for symptoms regardless of how those symptoms are diagnosed or labeled.

 https://www.va.gov/vetapp16/Files3/1619420.txt

https://www.va.gov/vetapp12/files3/1217273.txt

 

[Wanderer]

This is brilliant, pacman1x. Thank you. For reopening the claim, should I employ a DAV group, or is it easy enough to do on my own?

Someone on this forum, I think, said because back pay's so large (I read somewhere that the VA usually assigns 70% sc disability for this diagnosis- it's either nothing, 70% or 100% if one can't keep out of psychiatric hospitals as I understand it) it must go before a judge.

And yes, I see how Clemons may addresses the issue of the inpatient doctors misdiagnosing my bipolar symptoms...

 

Edit: Ahh, Form 20-0995, perhaps.

 

 

Edited January 28, 2021 by Wanderer

[pacmanx1]

2 hours ago, Wanderer said:

This is brilliant, pacman1x. Thank you. For reopening the claim, should I employ a DAV group, or is it easy enough to do on my own?

Someone on this forum, I think, said because back pay's so large (I read somewhere that the VA usually assigns 70% sc disability for this diagnosis- it's either nothing, 70% or 100% if one can't keep out of psychiatric hospitals as I understand it) it must go before a judge.

And yes, I see how Clemons may addresses the issue of the inpatient doctors misdiagnosing my bipolar symptoms...

 

Edit: Ahh, Form 20-0995, perhaps.

Yes, since you reopened this claim before you and the DAV can probably handle it. I would say only get an attorney if you need one. Filing a VA form 20-0995 may work but it still may have to go to BVA to be granted and if the BVA deny it then you can get an attorney.  As for the misdiagnosis, I would not mention it. It really does not matter.  Clemons addresses the fact that VA should have considered your claim based on the symptoms, so all you have to do is request that VA reopen your claim and you request that your rating and effective date should be the date of your original claim of April 4, 1997. Now the VA may grant you a Fenderson Rating but only time will tell. A Fenderson rating is where the VA will assign you a rating percentage for 1997 and increase it up to 2018 but before we even think about that let’s see what they will say about reopening your claim.