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

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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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Berta - got a call yesterday and he's going to take my case. He said the VA has a special division for handling claims that were denied due to CUE and that it should only take 3 - 6 months to get the case resolved.

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That is wonderful News!!!!!

Yes, CUE could alter the reduction period, and then 3.156(C) could kick in ,based on the BVA decision you quoted here.

I am unaware of any special division at the ROs that handles this type of CUE- but then again, your lawyer seems very much willing to help you and get everything fixed.

I also feel many proposals of reduction are never aggressively fought by the claimant.

My husband got a proposal to reduce his 30% SC for PTSD on Christmas Eve 1988, to 10%.

I prepared his NOD and used the same regulations VA used to reduce, to support how inaccurate and deficient their proposal was.

AMVETS was his POA and called here ( he was at work  at the local VAMC) and they told me the VA had restored his 30% entitlement.

He also asked me who prepared the NOD and I said I helped him with that , and wrote a scathing NOD because their proposal was not based on any logical evidence at all- 

I already posted here years ago what they had based it on- it was Ridiculous!!!!

So back to 30% SC 1989, then after he died, with two claims pending -one for higher rating of his PTSD, I got that up to 100% P & T back to November 1991 as an accrued benefit, and I also succeeded in his 1151 claim being awarded.  Both awarded after 3-4years at the RO level.

The worse thing any veteran can do is to accept a proposed reduction.

Nothing is Impossible- but in your case it will take a lawyer to handle this.

Three years after the proposed reduction his PTSD got much worse-that was part of his 1151 malpractice claim.

I began to fight aggressively at the local VAMC for the real PTSD shrink-he had become violent -and they still had him seeing the employee shrink, who didn't have a clue on PTSD.

It was the VA PTSD shrink and two VA hospitalizations, and multiple psychiatric tests, and hypnosis, etc etc, that proved his PTSD was ,at that point, "catastrophic" per the medical records.

 

 

 

 

 

 

 

That was part of his 

I am so glad they are willing to help you!

Many lawyers dont want to deal with CUE scenarios- but you lawyer saw the potential right away!!!!!!!!

 

 

 

Edited by Berta
in cloud poor internet access
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Yes, that is 100% correct!!!!!!!!

the VA MUST have clear and unmistakable evidence that any pre existing disability was not aggravated by service.


https://www.va.gov/vetapp21/files5/a21009686.txt
ORDER

Entitlement to service connection for posttraumatic stress disorder (PTSD) and a depressive disorder not otherwise specified (NOS) is granted.

FINDINGS OF FACT

1. An acquired psychiatric disability was not noted upon the Veteran's entry into military service; an October 2008 record showed a normal psychiatric evaluation.

2. The evidence shows, clearly and unmistakably, that an acquired psychiatric disorder preexisted the Veteran's period of service in 2010.

3. The evidence does not show, clearly and unmistakably, that an acquired psychiatric disord
CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, PTSD and a depressive disorder NOS was aggravated by his active duty. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304.
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At the moment I'm awaiting the paperwork I need to sign for the lawyer. I will keep this post updated as events unfold. I don't know if the following info is of interest but the lawyer told since this was a CUE claim that it isn't bound by the same time limits as appealing a regular denial. Don't know if that info is of help to anyone out there but I hope it is.

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Yes it is correct-no time limit on CUE claims....we have had some winners here.

And I was very successful in filing CUE on decisions that were only a day old- I wrote to former Secretary Shulkin about that and he implimented new regulations for CUE that can be filed within the appeal period. He also used my suggestions that led to the HLR aspect we have today- whereby a HLR is trained to seek CUE in any decision the claimant has filed HLR on.

They (HRLs)have definitely caught VARO CUEs in that process, per what vets have posted here.

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