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Claim won but only partial back payment, should I forget it?


rogus

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In an odd situation and don't know what avenue if any I should or can pursue. I originally filed in 1998 for PTSD and fought 4 years for against the VA. In 2002 I was awarded 100% (but not total and permanent and was in psychiatric ward twice that year). In 2004 the VA Claimed CUE (clear and unmistakable error) and severed my service connection in 2005. For the first 2 years a vet org helped me appeal and then just started ignoring my request for help. I was given the impression that my case wasn't winnable an they would no longer pursue it. I then spent a few years trying to defend myself but in 2010 I filed some paperwork late but continued on with the appeal process. Around 2013 I managed to find another VSO that would help me out and eventually (2015) I won my case, I was rated at 70% for my PTSD and with my IBSD rating that kicked it up to 80% and I was awarded T&P IU. However I was only back payed to 2011. Talked to the regional office and was told it was because I filed that paperwork late in 2010 but that I could appeal that. Now I have been in the psychiatric ward 6 times and still have thoughts of suicide on a regular basis. (Right now I'm on the VA "Hot List"  and am getting calls from VA social workers to make sure I'm ok.) Well after spending 10 years worrying about whether I and my family were going to make it and going into debt I was happy to just call it quits at that point and figured it was just the VA getting a last "boot in".

A couple of days ago I found a copy of the VBA Judges decision and actually read it thoroughly. This is a direct quote "Service connection for an acquired psychiatric disorder was previously denied, however, at the time of the last decision on this claim, some of the Veteran's service records were not in the claims file.They have since been obtained.  Under 38 C.F.R. § 3.156(c) (2014), if at any time after VA issues a decision on a claim, 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.  Here, because relevant service treatment records have been received since
the last decision on this claim, and because there is no indication that VA previously would have been unable to obtain them because they did not exist or because the Veteran failed to provide sufficient information,
the claim must be reconsidered on the merits.  See id."

So the VA put me thru hell for 10 years for a mistake they made by mysteriously losing records from my file. Then I lost 5 years of back pay after I made a mistake - after having been put in a situation they created and I shouldn't have been in in the first place. Am I understanding this correctly or is my anger after finally realizing what happened clouding my view? If I am correct is there anything I can do about it? The VSO that helped me finally win this case told me that if I pursue this I will lose my T&P rating and possibly have to go thru another decade of their bs. I got to admit I'm afraid of even requesting records now simply because of the bs that the VA pulled over that 10 years am in no condition to go into another decade long fight with them. I can't hold a job because to much stress will cause me to have hallucinations (which is why I was in the psych ward twice in 2002 the last year I held a job). Not only that but I can't even try to raise a few bucks by selling my plasma because of the years I was overseas. My wife who quit her part time job in 2018 to look after me meets the VA's requirement as a Care Provider but because I served after Vietnam and before 9/11 she can't sign up for that program till Oct 2022. I don't know what to do or even if I can do anything? Plz send some advice my way.

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Have been getting over back surgery and have contacted a lawyer. This is what I emailed to her which sums up my situation:

In an odd situation and don't know what avenue if any I should or can pursue. I originally filed in 1998 for PTSD and fought 4 years for it against the VA.
In 2002 I was awarded 100% (but not total and permanent and was in psychiatric ward twice that year). In 2004 the VA Claimed CUE (clear and unmistakable error) and
severed my service connection in 2005. For the first 2 years a vet org helped me appeal and then just started ignoring my request for help. I was given the impression
that my case wasn't winnable and they would no longer pursue it. I then spent a few years trying to defend myself but in 2010 I filed some paperwork late but continued
on with the appeal process. Around 2013 I managed to find another VSO that would help me out and eventually (2015) I won my case, I was rated at 70% for my PTSD and with
my IBSD rating that kicked it up to 80% and I was awarded T&P IU.

However, I was only back payed to 2011. Talked to the regional office and was told it was because I filed that paperwork late in 2010 but that I could appeal that.
Now I have been in the psychiatric ward 6 times in the past (last time in 2006) and still have thoughts of suicide on a regular basis. Right now I'm on the VA "Hot List"
and am getting calls from VA social workers to make sure I'm ok. Well after spending 10 years worrying about whether I and my family
were going to make it and going into debt I was happy to just call it quits at that point and figured it was just the VA getting a last "boot in".

A couple of days ago I found a copy of the VBA Judges decision and actually read it thoroughly. This is a direct quote,
 "Service connection for an acquired psychiatric disorder was previously denied, however,at the time of the last decision on this claim, some of the Veteran's service
 records were not in the claims file.They have since been obtained.  Under 38 C.F.R. § 3.156(c) (2014), if at any time after VA issues a decision on a claim, 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.  Here, because relevant service treatment records have been received since the last decision on this claim, and because there is no indication that
 VA previously would have been unable to obtain them because they did not exist or because the Veteran failed to provide sufficient information, the claim must be reconsidered on the merits.  See id."

The BVA's desicion also explicitly states that the VA's claim of CUE (which was how they justified severing my service connection in 2005) was in error. It specifically lists documents that the VA had in their possesion prior to their 2005 severence of my service connection for PTSD which counters the Regional Offices claim of CUE. These documents included my 1998 C&P exam results, a letter from of support in 2002 from my previous psychiatrist (outside of the VA - Dr Bharati) and a letter of support in 2004 from my new (at the time) psychiatrist at the VA hospital (Dr. Alexander). Although the VA has sent me an electronic copy of all their records concerning this case it appears that the letter of support that Dr. Alexander wrote in 2004 is missing. I must assume that is one of the missing documents the BVA refers to. Fortunately I still have a personal copy.        

So the VA put me thru hell for 10 years for a mistake they made by mysteriously losing records from my file and incorrect application of CUE rules. Then I lost 5 years of back pay after I made
a mistake - after having been put in a situation the VA created themselves and that I shouldn't have been put in, in the first place. I believe I should not have been responsible for correcting the VA's mistake nor should I be responsible for any error's I might have made along the way when the BVA states that I had already provided ample evidence to win my case prior to the VA severing my service connection. Really, the guy with PTSD is responsible for correcting the the gov't agency that has thousands of people who are supposed to be trained in deciding these cases correctly?

Am I understanding this correctly or is my anger after finally realizing what happened clouding my view?
If I am correct is there anything I can do about it?

The VSO that helped me finally win this case told me that if I pursue this I might lose my T&P rating (simply because that's how the VA has treated me) and possibly have to go thru another decade of their bs. I got to admit I was even afraid of requesting records simply because of the bs that the VA pulled over that 10 years and am in no condition to go into another decade long fight with them. Finances are starting to get tight.I can't hold a job because to much stress will cause me to have hallucinations (which is why I was in the psych ward twice in 2002 the last year I held a job). Not only that but I can't even try to raise a few bucks by selling my plasma because of the years I was overseas. My wife who quit her part time job in 2018 to look after me meets the VA's requirement as a Care Provider but because I served after Vietnam
and before 9/11 she can't sign up for that program till Oct 2022.

I don't know what to do or even if I can do anything? Plz send some advice my way.

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Togus Well it appears that you are 100% P&T, and that certainly is a good thing benefit-wise. Congrats on that. It also looks like you have a very significant pile of money on the table. You need to do 2 things:1) figure out if you want to go thru the anguish again of the uncertainty of what will happen. It is question of law when you claim a cue, but they certainly are going to be looking at all or your files. In my opinion, a que is not for the faint of heart. And 2), if you decide to go forward with the cue, I would seek out a lawyer that has great experience in them. Yes, it will cost you some of the back pay. But 70% of something is always more than 100% of nothing if you lose. No one can make this decision for you and some may say your rating is protected. What the VA is supposed to do and what they actually do do are two different animals. What I am saying is refer back to #1. Best of luck brother.

 

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Rogus, can you give us the Docket# and Citation # of what appears to be a BVA Remand?

and the date of it?

You said:

filed in 1998 for PTSD and fought 4 years for it against the VA.
In 2002 I was awarded 100% (but not total and permanent and was in psychiatric ward twice that year). In 2004 the VA Claimed CUE (clear and unmistakable error) and
severed my service connection in 2005."

Can you scan and attach that letter from the RO and the Evidence list they used?

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

You quoted the BVA as saying:

"VA previously would have been unable to obtain them because they did not exist or because the Veteran failed to provide sufficient information, the claim must be reconsidered on the merits.  See id."

As I understand this you can file a claim under 38 CFR 3.156 (c)if th VA ignored this legal statement and you might even have basis for a CUE under 38 CFR.4.6.

You stated"

"The VSO that helped me finally win this case told me that if I pursue this I might lose my T&P rating (simply because that's how the VA has treated me) and possibly have to go thru another decade of their bs. I got to admit I was even afraid of req"

The VSO is full of crap.

I am beginning to believe that VSOSs and vet reps are told only one good decision per POA claimant-dont help them pursue CUE or 3.156 claims---or the VSO themselves are suimply too lazy to deal with valid claims for a better EED and/or to correct VA errors.

I was told by my former vet rep ,in 1998, not to even file a NOD on a 1151 DIC widow's award I got because he said "1151s are different from regular DIC claims."

1151 DIC means the VA admitted to causing my husband's death.

My point to the vet rep was it was obvious that the VARO should have considered SMC as an accrued benefit but they never considered it-.

The RO sent me some ridiculous BS and finally set the SMC CUE for BVA transfer-then something else happened- I was a Nehmer claimant under IHD in 2010.

Th Nehmer VARO could read. They handled my Accrued IHD award properly and granted the SMC CUE. I have had since success with CUE in other decisions.Then again I dropped my POA long ago and did it all myself.

My 2003 re open- a vet rep from the same state outfit told me I would never succeed on that claim. After I filed a complaint with OGC and also this state reps boss, the Governor, a shake up occured there.

There are many vets here with far more expertise than any vet reps I ever had-just last week another member was told the same BS by his POA rep.

If we can read the actual BVA decision , and the 2005 VARO decision, we can help more.

It certainly sounds to me that VA owes you some CASH!

Do you receive SSDI? If so, is it solely for the PTSD?

 

 

 

 

Then when I re opened in 2003 for a direct SC death, I filed a CUE on the 1998 decision, and that claim took 8 years to be awarded

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I have a rather stubborn streak in me to accomplish things which is why I fought the VA for 10 years. However my wife, not so much. I haven't even spoken to her yet about this since I am awaiting a reply from the lawyer. I must admit that if the VA were to suddenly decide to cut my T&P my wife and I could be out on the street in short order. I certainly don't mind giving up a percentage of backpay to the lawyer afterall they are performing work on my behalf. I don't expect anyone to work for free. I do however expect to be treated fairly by the gov't whose salary I helped pay.

I am not afraid of going thru8 more C&P exams. Been thru them multiple times already and they all came out in my favor. I was even sent to a different VA then my local VA for an exam and it still came out in my favor. Personally I think that that was a ploy on their part in hopes of getting at least one C&P examiner to disagree with the ones that supported my case. In 2015 when they were forced by the BVA to grant my claim they only rated me at 50% and claimed to have based this on my current medical records. Of course the problem with that is that I have been dealing with thought of suicide on a regular basis since before 2002 and that is in my medical records. I have even asked my VA psychologist if there is an answer I can give other than "yes" when I go in for other appt's and of course they ask you if you have had any recent thought's of suicide. I don't want to lie and say "no" but I only want to discuss those things with my mental health provider. However, having had to represent myself for a few years I had to try to study some VA law and know that suicidal ideation is listed in the VA laws as a 70% or 100% rating criteria and not 50% or below. I had to fight them till 2018 to get them to correct that. They had sent me for a C&P in 2016 after I filed an NOD and that not only came out in my favor and even listed the fact that I have recurri9ng thoughts of suicide. I believe the 50% rating was just another thing the VA did intentionally to screw me over. There's a reason I'm paranoid about dealing with the VA.

I'm sorry if I am rambling.

As far as posting the full bva desicion or other paperwork I would rather not simply for the sake of my privacy. What happened to cause my PTSD is referenced throughout and that is something I wish only to discuss with my doctor whom I have spent years with in developing trust. I don't mean to offend but when it comes to certain things I prefer to keep them to myself. I hope you understand. I am not ashamed that I have PTSD and even recurring thoughts of suicide and I don't mind sharing that. However the cause is something I wish to keep private.

 

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